Can a Little Rock police officer block release of his personnel file under the Arkansas FOIA?

Plain-English summary

The City of Little Rock received a FOIA request for "copies of the nonexempt portions of each uniformed, plain clothed non-undercover LRPD officer's personnel record." The custodian determined the records were personnel records that should be released, with redactions. Officer Jon B. Mueller (one of the subjects) objected and asked the AG to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG sided with the custodian. After reviewing the redacted records the custodian forwarded:

1. Classification. The records were properly classified as personnel records, not employee-evaluation records.
2. Disclosure. Releasing them as redacted was consistent with the FOIA. The privacy-balancing test from Young v. Rice did not tip toward withholding.
3. Officer objections. Mueller's two stated objections (invasion of privacy and harassment) were not legally sufficient to bar disclosure. There is no general "harassment exception" in the FOIA, and a requester's motive is generally irrelevant.

The AG also restated the standard list of items the custodian must redact regardless of the global classification: personal contact info, personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical info, undercover-officer identifying info, driver's license numbers, insurance coverage, tax/withholding info, payroll deductions, and banking info.

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.

Common questions

Q: What's the difference between "personnel records" and "employee evaluation records" under the Arkansas FOIA?
A: Personnel records are the catch-all for everything other than employee-evaluation records that pertains to an individual employee. Employee-evaluation records are documents created by or at the behest of the employer to evaluate the employee, detailing performance or lack of performance. The classification matters because the disclosure tests are very different. Personnel records are presumptively open subject to a privacy-balancing test; evaluation records are presumptively closed unless four conditions are met (suspension or termination, finality, basis, compelling public interest).

Q: What's the privacy-balancing test from Young v. Rice?
A: Two steps. (1) Is the information of a personal or intimate nature giving rise to a greater-than-de-minimis privacy interest? If no, disclose. (2) If yes, does the privacy interest outweigh the public's interest in disclosure? The thumb is on the scale toward disclosure, and the records subject (here, Mueller) bears the burden of showing his privacy outweighs the public interest.

Q: Is "this is harassment" ever enough to block release?
A: No, not by itself. The AG observed that the General Assembly has never created a general harassment exception in the FOIA. Even if the requester is acting out of personal animus, that motive is irrelevant to whether the records meet the disclosure test.

Q: What about active-undercover officers?
A: They get a separate, stronger protection. Ark. Code Ann. § 25-19-105(b)(10) requires redaction of any information identifying an officer currently working undercover. The LRPD request explicitly excluded undercover officers ("uniformed, plain clothed non-undercover"), which is why this opinion handled it as a routine personnel-records disclosure.

Q: What gets redacted from a personnel record before release?
A: The opinion lists the standard items: personal contact information (phone, email, home address) under Ark. Code Ann. § 25-19-105(b)(13); employee personnel number; marital status and dependents; date of birth; Social Security number; medical information; identifying info for undercover officers; driver's license number and photocopy; insurance coverage; tax and withholding info; payroll deductions; banking info. These are redacted even when the document as a whole is releasable.

Q: Does it matter that Mueller didn't know who the requester was?
A: No. Whether the requester is a journalist, an attorney, a former coworker, or a private citizen with a grudge, the records release test is the same. The AG noted "long" precedent that "a FOIA requester's motive for making the request is generally irrelevant to whether a non-exempt public record should be released."

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., creates a strong presumption of access to public records held by entities subject to the act. A municipal police department like LRPD is plainly such an entity. The records analysis runs through three elements: (1) is the entity subject to FOIA; (2) is the document a public record; (3) does an exception apply.

Sections 25-19-105(b)(12) and (c)(1) carve out the two relevant exceptions for employment-related documents. The (b)(12) exception covers "personnel records" only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The (c)(1) exception covers employee-evaluation records, which are open only on the four-factor test (suspension or termination, finality, basis, compelling public interest). The Arkansas Supreme Court adopted the AG office's three-element definition of "employee evaluation or job performance records" in Thomas v. Hall, 2012 Ark. 66.

For the privacy-balancing test on personnel records, the controlling case is Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Stilley v. McBride, 332 Ark. 306 (1998), establishes that the records subject (or other person resisting disclosure) bears the burden of showing privacy outweighs public interest. The thumb-on-the-scale framing is from the leading FOIA treatise, Watkins, Peltz-Steele & Steinbuch, The Arkansas Freedom of Information Act (6th ed. 2017).

Section 25-19-105(c)(3)(B)(i) is the procedural hook for AG review. Three categories of people can request the AG's opinion on a custodian's release decision: the custodian, the requester, or the subject of the records. Mueller invoked it as the subject.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer redaction)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG-opinion review procedure)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

Opinion No. 2019-047
July 8, 2019

Jon B. Mueller
c/o Stacey Witherell, Director
Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Mr. Mueller:

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 FOIA request for "copies of the nonexempt portions of each uniformed, plain clothed [sic] non-undercover LRPD officer's personnel record." The custodian has forwarded for my review redacted copies of the records that the custodian has determined are responsive to the request. The custodian has also determined that these records are your personnel records that are subject to disclosure as redacted. You object to the release of your personnel file to the person who has submitted the FOIA request. You express concern that this request "is an invasion of [your personal] privacy and harassment." You ask whether the custodian's decision to release the records is consistent with the FOIA.

RESPONSE

My duty under section 25-19-105(c)(3)(B)(i) is to state whether the custodian's decision as to the release of personnel or employee-evaluation records is consistent with the FOIA. Having reviewed the documents the custodian forwarded to me as the records intended for release, as redacted, it is my opinion that (1) the records in question are properly classified as your personnel records, and (2) the custodian's decision to release them, as redacted, is consistent with the FOIA. Furthermore, it is my opinion that your objections to the records' release are not legally sufficient reasons for the custodian to withhold the records.

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. Likewise, 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.... All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records." Therefore, the records in question must be disclosed unless some specific exemption provides otherwise.

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." 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. First, 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.

The custodian has classified the records at issue as your personnel records. In my opinion, this determination is correct. Thus, the personnel-records exemption is the relevant exemption with respect to the records at hand. I will therefore limit my discussion to that exemption.

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-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 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."

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 in 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.

The custodian has determined that the records forwarded for my review are your personnel records, and are subject to disclosure, as redacted. Having reviewed the records, it is my opinion that the custodian's determinations are consistent with the FOIA.

Moreover, your stated objections to the records' release are not legally sufficient reasons to withhold the records. First, as to your objection that the release of the records is an invasion of your privacy, please remember that personnel records of public employees, active or former, are subject to disclosure under the FOIA except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." In my opinion, applying the balancing test for personnel records discussed above would not tip in favor of withholding the requested documents in this case. Additionally, the custodian has properly redacted from the records certain personal information that cannot be released.

Second, regarding your concern about the harassing nature of the request, I have previously observed that the General Assembly has not established a generalized "harassment exception" to the release of otherwise disclosable employee-related records. Finally, this office has long noted that a FOIA requester's motive for making the request is generally irrelevant to whether a non-exempt public record should 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 public.

In sum, it is my opinion that the custodian has properly classified the records at issue as your personnel records, and that the custodian's decision to release the records, as redacted, is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General