Can a city release the place of residence of every Little Rock firefighter under FOIA, or is that protected?

Plain-English summary

A FOIA requester asked the City of Little Rock for "the place of residence, race, gender and station number for every Little Rock firefighter." Sandy R. Edgar, the city's HR Specialist and FOIA Coordinator, decided to withhold "the city an employee resides in" on the theory that it was part of the firefighter's personnel record and therefore not releasable. She asked the Attorney General whether her decision was consistent with FOIA.

Attorney General Leslie Rutledge agreed with the withholding but said the custodian may have identified the wrong reason. The opinion points to Ark. Code Ann. § 25-19-105(b)(13), which exempts personal contact information including home addresses of nonelected municipal employees. The AG read "home address" to include its street, zip code, city, and county components and treated a request for place of residence as presumably covered by that exemption.

The opinion closed by invoking a standard rule of statutory construction: when a record fits more than one exemption, the more specific one controls.

Currency note

This opinion was issued in 2019. 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.

Background and statutory framework

Arkansas FOIA contains two overlapping exemptions for items typically found in personnel files:

• Section 25-19-105(b)(12): exempts "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The opinion mentions this general provision but does not apply it to decide the request.
• Section 25-19-105(b)(13): exempts "personal contact information including … home addresses" of nonelected municipal employees. The AG treated it as the more specific provision for the requested place-of-residence information.

The opinion also restated the general FOIA framework: a record is releasable if the entity is subject to FOIA, the document is a public record, and no exemption applies. Records held by a public entity carry a rebuttable presumption that they are public records.

Why the AG corrected the reasoning even though the result was right

The custodian apparently relied on the personnel-records exemption in subsection (b)(12). The AG said the more specific personal-contact-information exemption in subsection (b)(13) more directly explains why withholding place of residence was consistent with FOIA.

The opinion does not evaluate a privacy balancing test or discuss how a custodian should defend a lawsuit.

The opinion drew on Op. Att'y Gen. 2011-114, which had read "home address" expansively to include not just the literal street address but also zip code, city, and county. That reading is what makes "place of residence" line up with the personal-contact-information exemption: the AG considered the city of residence to be a component part of a "home address."

The opinion also invoked a common rule of construction (citing Searcy Farm Supply, LLC v. Merchants & Planters Bank): when a record qualifies for more than one statutory exemption, the more specific exemption controls. Here, (b)(13) is the more specific exemption that targets exactly this kind of contact information, so it governs over the general personnel-records exemption.

Common questions

Can a city release the home address of a firefighter under Arkansas FOIA?

The opinion concluded that no, home addresses of nonelected municipal employees, including firefighters, are categorically exempt under Ark. Code Ann. § 25-19-105(b)(13).

Does "home address" include just the street, or also the city and zip?

The AG's office had read the term broadly. A 2011 opinion (2011-114) treated city, zip, and county as component parts of a "home address." On that reading, even the firefighter's city of residence is exempt.

What other firefighter information was at issue, and how was it treated?

The original request also asked for race, gender, and station number. The custodian asked the AG only about withholding place of residence. This opinion does not decide whether the other requested information should be released.

What happens when one record fits two FOIA exemptions?

The opinion applied a standard rule: the more specific exemption controls. So when both the personal-contact-information exemption (b)(13) and the personnel-records exemption (b)(12) could apply, (b)(13) governs because it speaks directly to that kind of information.

Why did the AG identify a different exemption?

The AG said subsection (b)(13) more directly supports withholding the requested place of residence. The opinion does not discuss litigation outcomes.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(3)(B)(i); Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 492, 256 S.W.3d 496, 501 (2007); prior AG opinions cited include 2011-114, 2010-044, and 2015-072.

Source

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

Original opinion text

Opinion No. 2019-004
January 14, 2019
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Sandy R. Edgar, HR Specialist/FOIA Coordinator
Little Rock Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Ms. Edgar:

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 someone has requested "the place of residence, race, gender and station number for every Little Rock firefighter." You have determined that the "city an employee resides in is part of a personnel file and not releasable," and you ask whether your decision to withhold "the place of residence," which you state is part of the employee's personnel record, is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, your decision to withhold the employees' "place of residence" is consistent with the FOIA, though you may have misidentified the correct reason for refusing to disclose it.

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 out by a public official or employee…."

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." I will not undertake any further review of the employee-evaluation records exemption because it does not appear to be applicable in this case.

The FOIA does not define the term "personnel records." But this office has consistently opined that "personnel records" are all records other than employee-evaluation and job-performance records that pertain to individual employees. Under the FOIA, personnel records must be disclosed unless doing so "would constitute a clearly unwarranted invasion of personal privacy."

You have stated that, in your opinion, the information being requested in this case (every firefighter's "place of residence") is part of the employee's personnel record. This suggests that you have identified Ark. Code Ann. § 25-19-105(b)(12) as the applicable exemption. However, a separate, specific subsection of the FOIA, Ark. Code Ann. § 25-19-105(b)(13), exempts from disclosure "[p]ersonal contact information including … home addresses of … nonelected municipal employees." In my opinion, this exemption encompasses all component parts of a "home address," namely, a street address, zip code, city, and county. A request for an employee's place of residence presumably is a request for personal contact information covered by this exemption.

So while you have correctly decided to withhold the employees' place of residence, the reason that is the correct outcome is more directly tied to the exemption under section 25-19-105(b)(13), not the personnel-records exception under section 25-19-105(b)(12). When a public record qualifies for more than one exception, as a public employee's place of residence arguably does, the more specific exemption controls.

Sincerely,
LESLIE RUTLEDGE
Attorney General

1. Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).

2. See Op. Att'y Gen. 2010-044.

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)(1): "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.

7. Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2017).

8. See Op. Att'y Gen. 2011-114 (and opinions cited therein).

9. See Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 492, 256 S.W.3d 496, 501 (2007) ("[I]t is blackletter law for statutory construction to give effect to the specific statute over the general.").