Can the City of Little Rock release a code enforcement officer's ID photograph under FOIA over his objection?

Plain-English summary

Mark Scott, a Code Enforcement Officer with Little Rock's Housing & Neighborhood Programs, asked the Attorney General to review the City's decision to release his personnel file (including his city ID photograph) in response to a FOIA request. Scott objected to release of the photograph.

Attorney General Leslie Rutledge concluded that the photograph release was likely consistent with FOIA. The opinion incorporated by reference Op. 2018-125, which had addressed the same underlying FOIA request directed at a different city employee. The reasoning is the same in both cases: records depicting public employees are generally subject to disclosure under the personnel-records test, and a requester's identity or motive is generally irrelevant under the objective test in Young v. Rice.

The City had also determined that "[n]o information like address, date of birth, telephone number or social security information is releasable." The AG treated those redactions as proper.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Why the photograph was releasable

Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the AG reviews whether a custodian's decision is consistent with FOIA. The opinion's logic, which draws from prior AG views (Ops. Att'y Gen. 2012-001, 2011-003, 2007-213), is that photographs of public employees in their employee capacity ordinarily do not give rise to a "clearly unwarranted invasion of personal privacy." Public employees occupy public roles; their image as recorded by their employer is part of the documentation of who serves the public.

The objective Young v. Rice balancing test forecloses subject-based objections. The records' subject can dislike disclosure as much as he wants; the test asks what a reasonable observer would conclude about the public's interest weighed against an objectively measured privacy interest. The subject's preference is not in the calculus.

The requester's identity or motive is also out of bounds. Arkansas FOIA does not look at why the requester wants the records.

Common questions

Why does this opinion incorporate Op. 2018-125?

Both opinions addressed the same underlying FOIA request directed at multiple City of Little Rock Housing & Neighborhood Programs employees. The substantive analysis is identical, so the AG kept Op. 2018-125 as the master and pointed Scott (and others) to it for the full reasoning.

Can a public employee's ID photograph be released under Arkansas FOIA?

Generally yes. Photographs of public employees in their employee capacity are personnel records that ordinarily do not rise to the level of a clearly unwarranted invasion of personal privacy.

Does the requester's identity matter?

No. Under Arkansas FOIA, the requester's identity and motive are generally irrelevant to whether records must be released.

What about the employee's home address, phone number, or SSN?

Those are categorically protected. The City correctly determined to withhold address, date of birth, telephone number, and Social Security information.

Citations

Ark. Code Ann. § 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); prior AG opinions Op. Att'y Gen. 2018-125 (incorporated by reference), 2012-001, 2011-003, 2007-213, 2014-094.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2018-129
October 11, 2018
Mark Scott, Code Enforcement Officer
Housing & Neighborhood Programs
c/o Sandy Edgar
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Mr. Scott:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation records to seek an opinion from this office stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

Your correspondence indicates that the City of Little Rock has received a request under the FOIA for your personnel file, including your city identification photograph. The custodian has determined that the requested records are personnel records that are releasable pursuant to the FOIA. The custodian has also determined that "[n]o information like address, date of birth, telephone number or social security information is releasable." You express concern about the release of your photograph.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I addressed the custodian's decision regarding the same FOIA request in Opinion No. 2018-125, which is enclosed for your review. This opinion addresses essentially the same objections you have raised. I concluded that the basis for objecting does not appear to be a legally sufficient reason to withhold the records.

I will not restate the entire analysis, which applies equally to your request for my opinion. But in sum, records depicting public employees are generally subject to disclosure under the test for personnel records. Accordingly, the custodian's decision to release your photograph is likely consistent with the FOIA. And the requester's identity or motive for making the request is generally irrelevant to whether a record must be released. That is because the test for the release of personnel records is entirely objective, meaning that the custodian does not consider the subjective motives or identity of the requester.

Please see the enclosed Opinion 2018-125 for the entire substantive analysis.

Sincerely,
LESLIE RUTLEDGE
Attorney General
Enclosure

(The original opinion attached and reissued Op. Att'y Gen. 2018-125, which contains the full substantive FOIA analysis applied to the same request.)