Can a state agency release a list of employee names, titles, salaries, start dates, gender, and race under Arkansas FOIA?

Plain-English summary

A FOIA requester asked the Arkansas Department of Finance and Administration (DF&A) for a comprehensive employee list covering several specific dates between 2013 and 2019. The list was to include each employee's name, race, gender, position title, position number, pay grade, class code, annual salary, hire date, office within the department, and the name and title of the direct manager. DF&A's records custodian compiled the list (with name, title and division, salary, start date, gender, and race) and decided to release it as a personnel record. Nakia Davidson, an employee whose information appeared on the list, asked the Attorney General whether that decision was consistent with FOIA.

Attorney General Leslie Rutledge concluded that yes, releasing the list was consistent with FOIA. The opinion did not need to break new ground. The AG's office had previously addressed releases of this same kind of basic employment data and consistently held that it qualifies as personnel records open to inspection and copying. The opinion repeated the Young v. Rice balancing-test framework, reiterated the categories of personal information that must be redacted, and noted that the analysis had not changed.

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

The Arkansas FOIA covers state agencies, including DF&A, and presumes that records held by such agencies are public records. Two exemptions cover items typically found in personnel files:

• Personnel records: releasable except to the extent disclosure would constitute "a clearly unwarranted invasion of personal privacy" (Ark. Code Ann. § 25-19-105(b)(12)).
• Employee evaluation or job performance records: releasable only where the employee was suspended or terminated, the records formed the basis of that decision, the proceeding has reached final resolution, and there is a compelling public interest (§ 25-19-105(c)(1)).

The opinion focused on the first exemption. Under Young v. Rice, the test is a two-step balancing: (1) does the information give rise to a greater than de minimis privacy interest, and (2) if so, is the interest outweighed by the public's interest in disclosure? The scale tips in favor of disclosure, and the person resisting release carries the burden (Stilley v. McBride).

Why this kind of employment data is releasable

The opinion treated this as settled. Releases of employee names, titles, salaries, start dates, and similar basic data have been the subject of multiple prior AG opinions, including Ops. Att'y Gen. 2016-101, 2011-044, 2011-041, and 2007-184. The reasoning across those opinions is that information about who works for the government, what they do, and what they are paid speaks directly to "the workings of government for the general public," which is FOIA's core concern.

The privacy interest in this category of information rarely rises above de minimis under Young v. Rice. Names of public employees, their titles and pay are not "personal or intimate" in the sense the test contemplates. Even race and gender of public employees, on FOIA's logic, are reportable as part of the public record of who serves in government roles.

The opinion also reproduced the standard list of items that must be redacted from any personnel record release, which serves as a reminder to custodians: home addresses, employee personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical information, undercover-officer identifiers, driver's license number and photocopy, insurance coverage, tax information or withholding, payroll deductions, and banking information.

Common questions

Is an employee's salary releasable under Arkansas FOIA?

The opinion concluded that yes, public employee salaries are releasable as personnel records. The AG's office had repeatedly held the same.

Can a state agency release the race or gender of its employees?

Yes. The opinion specifically addressed a list that included gender and race and concluded that releasing the list was consistent with FOIA. The privacy interest in those data points, in the context of public employment, was treated as not outweighing the public interest in disclosure.

What about an employee's date of birth or Social Security number?

Those are categorically protected. Dates of birth (per Op. Att'y Gen. 2007-064) and Social Security numbers (per Ops. Att'y Gen. 2006-035, 2003-153) must be redacted before release.

Did the AG say the public employee can object and force withholding?

No. The Young v. Rice test is objective. The subjective view of the records' subject does not control. The opinion makes that clear by reciting that the balancing measures the public interest, not the employee's preference.

What if the request covers years of historical data?

The opinion's request covered data on seven specific dates between 2013 and 2019. The AG did not treat that scope as changing the analysis. Each dated snapshot of the employee list is, in itself, a personnel record subject to release on the same standards.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998); prior AG opinions cited include 2016-101, 2011-044, 2011-041, 2007-184, 2015-072, 99-147, 2010-044, 2014-094, 2007-070, 2001-080, 2007-064, 2006-035, 2003-153, 2017-125, 2013-090, 2004-167, 2005-194, 2003-385, 98-126, 2016-055, 2001-112, 2001-022, 94-198, 2006-176, 2004-260, 2003-336, and 98-001.

Source

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

Original opinion text

Opinion No. 2019-008
January 23, 2019
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Nakia Davidson, Service Representative
Arkansas Department of Finance and Administration
1550 North Ingram Boulevard
West Memphis, AR 72301
Dear Ms. Davidson:

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 Arkansas Department of Finance and Administration ("DF&A") has received a request under the FOIA for a "list of all employees of [DF&A] as of June 30, 2013, June 30, 2014, June 30, 2015, June 30, 2016, June 30, 2017, June 30, 2018, and January 1, 2019," with the list to include "employee name, race, gender, position title, position number, pay grade, class code, annual salary, hire (start) date, office within DFA (e.g. Office of Accounting), name and title of direct manager." Correspondence submitted to my office indicates that in response to this FOIA request, the custodian compiled a list that includes the name, title and division, salary, start date, gender and race of all DF&A employees. It further appears that the custodian has determined that this list is a personnel record and that it should be released. You ask whether the custodian's decision to release your information included in this list is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In this case, the custodian has decided that the requested information is a personnel record and that it is open to public inspection and copying. In my opinion, the custodian's decision is consistent with the FOIA.

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 DF&A, which is a public entity subject to the FOIA. Furthermore, 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." Because the relevant exception in this instance appears to be the one for personnel records, I will limit my discussion to records of that type.

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."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court 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 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 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 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. The fact that the subject of records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

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. § 25-19-105(b)(13));
• 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)(10));
• 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).

III. Application.

In response to the instant FOIA request, the custodian intends to release a list of DF&A employees that includes your name, title and division, salary, start date, gender and race. This office has previously addressed this type of information and has consistently concluded that this basic employment information is properly classified as a personnel record and that it is open to inspection and copying under the FOIA. I need not restate here the legal analysis that compels that conclusion. It is sufficient to state that the analysis remains unchanged since the issuance of those opinions noted below.

Accordingly, in my opinion, the custodian's decision to release a list that includes your name, title and division, salary, start date, gender and race is consistent with the provisions of the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General