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 to the objective personnel-records test.

The City had also determined that "[n]o information like address, date of birth, telephone number or social security information is releasable." The AG did not review or approve those proposed redactions in this opinion.

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 states that records depicting public employees are generally subject to disclosure under the personnel-records test, citing earlier AG opinions. It concludes that releasing Scott’s photograph was likely consistent with FOIA. The AG did not decide the release of every item in Scott’s file.

The test for personnel records is objective. The AG said the custodian does not consider the requester’s subjective motives or identity when deciding release. The incorporated Opinion 2018-125 supplies the fuller substantive analysis.

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?

The AG said records depicting public employees are generally subject to disclosure under the personnel-records test. She found release of Scott’s photograph likely consistent with FOIA, while leaving specific records in the file to the custodian.

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?

The city custodian said those details would not be released. This opinion reports that decision but does not evaluate the proposed redactions or decide which of those details appear in Scott’s records.

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

STAT E O F ARKAN SAS
ATTO RN EY G EN ERAL
LES LI E RU T LEDGE

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.

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Mark Scott
Opinion No. 2018-129
Page 2

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,

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,:

LESLIE RUTLEDGE
Attorney General

Enclosure

STATE OF ARKANSAS
ATTORNEY Gl:NERAL
LESLIE RUTLEDGE

Opinion No. 2018-125

October 10, 2018

Kyra McTyer, Administrative Technician
Department of Housing & Neighborhood Programs
500 West Markham, Suite 120W
Little Rock, AR 7220 I

Dear Ms. McTyer:

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)(8)(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 object to the release of your file and photograph to the person who has submitted the FOIA request. You question his need for the information, and you express concern about the information being released to this specific requester.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that the custodian deemed responsive to the request for your personnel file, I cannot opine on the release of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can only set out the legal standards the custodian

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Kyra McTyer
Administrative Technician
Opinion No. 2018-125
Page 2

must apply to determine whether certain employee-related records must be disclosed. In this regard, I will note that records depicting public employees are generally subject to disclosure under the test for personnel records. Thus, in my opinion, the custodian's decision to release your photograph is likely consistent with the FOIA.

Additionally, 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.

DISCUSSION

I. General standards governing disclosure.

A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.

The first two elements seem to be met. The request was made to the City of Little Rock, which is a public entity subject to the FOIA. The request appears to pertain to public records. The FOIA defines public records as "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions ... carried 1 out by a public official or employee .... "

Because the records are held by a public entity, they arc presumed to be public 2 records, although that presumption is rebuttablc. The custodian appears to have determined that they are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2
See Op. Att'y Gen. 2010-044.

Kyra McTyer
Administrative Technician
Opinion No. 2018-125
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found 3 in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 4 or "employee evaluation or job performance records." 5 The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. rirst, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.
a. Personnel-records exception.

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. But this office has consistently opined that "personnel records" are all records other than employee evaluation and job 6 performance records that pertain to individual employees. Whether a particular record meets this definition is, of course, a question of fact that can only be

3
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz- Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 4 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 5 Ark. Code Ann. § 25-19-105( c)(I): "Notwithstanding subdivision (b )( 12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure." 6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Kyra McTyer
Administrative Technician
Opinion No. 2018-125
Page 4

definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 7

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 8 has provided some guidance. To determine whether the release of a personnel record would constitute a "clearly unwarranted invasion of personal privacy," the Court applies a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing takes place with 9 the scale tipped in favor of disclosure.

The balancing test elaborated by Young v. Rice has two steps. First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimis 10 privacy interest. If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's 11 interest in disclosure. Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. 12 The fact that the subject of records may consider release of the records an unwarranted invasion 13 of personal privacy is irrelevant to the analysis because the test is objective.

7
Ark. Code Ann.§ 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.

11
Id., 826 S. W.2d at 255.

12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

Kyra McTyer
Administrative Technician
Opinion No. 2018-125
Page 5

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 14

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. Some items that must be redacted include:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann. § 25-l 9-105(b)(l3));

• Employee personnel number (Ops. Att'y Gen. 2014-094, 2007-070);
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b )( 1O));
• Driver's license number and photocopy of driver's license (Op. Att'y Gen.
  2017-125, 2013-090);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194 ).
  b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOJA likewise does not define. But the Arkansas Supreme Court has adopted this office's view that the term refers to any records ( 1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job. 15 This exception includes records generated while investigating

14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I.

15
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-03 8, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.

Kyra McTyer
Administrative Technician
Opinion No. 20 l 8-125
Page 6

allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 16

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

I. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 17

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this ofiice's opinions, have offered the following guidelines:

[I Jt seems that the following factors should be considered in determining whether a compelling public interest is present: ( 1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" • 18 reqmrement.

16
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
17
Ark. Code Ann.§ 25-l 9-l05(c)(I); Op. Att'y Gen. 2008-065.
18
Watkins, et al., at 238-39 (footnotes omitted).

Kyra McTycr
Administrative Technician
Opinion No. 2018-125
Page 7

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, 19 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship. 20

III. Application.

Because I have not seen any records that are responsive to the request for your personnel file, I cannot specifically opine on whether the custodian's decision is consistent with the FOIA. The custodian must properly classify the responsive records based on the above definitions and apply the appropriate disclosure test(s).

With regard, however, to your objection to the records' release, the basis for your objection does not appear to be a legally sufficient reason to withhold the records. I do not know precisely what personal information is contained in the records, but the custodian has stated that your address, date of birth, telephone number, and Social Security number will not be released. Additionally, regarding your photograph, this office has consistently opined that records depicting public employees ordinarily arc subject to disclosure under the test for personnel records. 21

And finally, a FOIA requester's identity or motive for making the request is 22 generally irrelevant to whether a record must be released. The test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general

19
Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue."). 20 q: Op. Att'y Gen. 96-168; Watkins, et al., at 223.
21
See Ops. J\tt'y Gen. 2012-001, 2011-003, 2007-213 (and opinions cited therein).
22
See Ops. Att'y Gen. 2014-094, 2012-014, 2011-107.

Kyra McTyer
Administrative Technician
Opinion No. 2018-125
Page 8

public. 23 The custodian's analysis cannot be based on a requester's subjective 24 motive. Some judicial remedy may be available to you, but only a court has the authority to hear such evidence and fashion an appropriate remedy.

In sum, while I cannot opine on the release of any specific record contained in your personnel file, I believe the custodian's decision to release your photograph is likely consistent with the FOIA.

Sincerely,

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LESLIE RUTLEDGE
Attorney General

23
See Op. Att'y Gen. 2018-087, 2018-061.
24
Op. Att'y Gen. 2014-094 (noting that "neither the Arkansas legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester.").