Can a city withhold the entire personnel files of terminated employees who failed drug tests, citing privacy and lack of compelling public interest?

Plain-English summary

The City of Little Rock had publicly disclosed (in aggregate) that three Public Works employees had been terminated over a three-year window for failing drug or alcohol screening tests. A requester then sought those three employees' personnel files. Sandy Edgar, the City's HR Specialist and records custodian, apparently planned to withhold the files entirely. Her stated rationale combined two different exemptions: she cited Ark. Code Ann. § 25-19-105(b)(12) (the personnel-records exemption, which turns on "clearly unwarranted invasion of personal privacy") and § 25-19-105(c)(1) (the evaluation-records exemption, which includes a compelling-public-interest element). She came to AG Leslie Rutledge for review.

The AG could not give a definitive answer because she had not seen the records, but she flagged a problem with how the custodian had reasoned to her decision.

The two FOIA exemptions for employment-related records are mutually exclusive and have different tests:

• Personnel records under § 25-19-105(b)(12): subject to release except to the extent disclosure would be a "clearly unwarranted invasion of personal privacy" under the two-step Young v. Rice balancing test.
• Employee evaluation or job performance records under § 25-19-105(c)(1): closed unless all four Thomas v. Hall prongs are met (suspension or termination, final administrative resolution, records formed a basis for the decision, compelling public interest).

The custodian had classified the files as personnel records but had also rejected disclosure based on lack of "compelling public interest", an element that exists only in the evaluation-records test. That mix-up was the AG's central concern. The right move was to take each responsive record one at a time, classify it correctly, and then apply the test that fits its classification.

The AG agreed that a "substantial privacy interest" likely was present (identifying a former employee's failed drug or alcohol screen could be embarrassing and could affect future employment). But she said she could not determine the public-interest side of the Young balancing test without seeing the records, departmental policies, and screening procedures. She also noted, drawing on a 2009 opinion involving police officers, that the public-interest weight may be higher when the employees in question hold positions with public-safety implications. The City would need to consider that the three employees worked for Public Works and assess the safety implications of their roles.

A separate complication: even if some records were properly evaluation records, the custodian had not made a record-by-record classification, and the AG could not tell from the correspondence which (if any) records were properly evaluation records.

The AG's bottom line was that without specific records and individual classification, she could not opine on whether the across-the-board withholding was consistent with FOIA. The custodian needed to do the underlying classification and test-selection work first, ideally in consultation with regular counsel.

Currency note

This opinion was issued in 2020. 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

Why does it matter which exemption a record falls under? Because the disclosure tests are different. Personnel records are presumptively releasable subject to a privacy balancing tipped toward disclosure. Evaluation records are presumptively closed unless all four Thomas v. Hall prongs (including suspension/termination and a compelling public interest) are met. Mixing the standards (e.g., applying the compelling-public-interest test to personnel records) leads to wrong outcomes in either direction.

What is the Young v. Rice balancing test?
A two-step inquiry from Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Step one: does the record contain personal or intimate information giving rise to more than a de minimis privacy interest? Step two: if yes, does that privacy interest outweigh the public's interest in disclosure? The balancing tips toward disclosure throughout.

What is the Thomas v. Hall four-prong test?
A test from Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, that controls release of employee evaluation or job performance records. All four must be satisfied: (1) suspension or termination, (2) final administrative resolution, (3) records formed a basis for the disciplinary decision, and (4) compelling public interest in disclosure.

Did the AG say drug-screening failure was a compelling public interest? She did not decide that question. She noted that whether a compelling public interest exists is fact-bound, and pointed to a prior opinion (Op. Att'y Gen. 2009-096) that suggested the public interest might be higher in the law-enforcement context. For Public Works employees, the City would need to consider the safety implications of the specific roles before concluding either way.

Could the custodian still withhold everything?
Maybe, but only after doing the classification and test-application work record by record. A blanket withholding citing both exemptions without that case-by-case analysis is not what FOIA contemplates.

Background and statutory framework

This opinion sits within the standard Arkansas FOIA two-track framework for employment-related records. Personnel records (Ark. Code Ann. § 25-19-105(b)(12)) and employee evaluation or job performance records (Ark. Code Ann. § 25-19-105(c)(1)) are mutually exclusive categories with different release tests. The custodian's first job is to classify each responsive record, then apply the appropriate test.

The procedural hook for the AG's review was Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the custodian, requester, or subject of certain employee-related records ask the AG whether the custodian's release decision is consistent with FOIA. Here the request came from the custodian. The AG's review is bounded: she opines only on the consistency of the custodian's decision, not on document-by-document specifics.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

Cases:

• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• 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

Prior opinions referenced:

• Op. Att'y Gen. 2009-096 (police officer psychological testing and "pass/fail" drug screening; suggesting higher public interest in law-enforcement context)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LES LI E RUTLEDGE

Opinion No. 2020-024

May 5, 2020

Sandy R. Edgar, HR Specialist
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 7220 I

Dear Ms. Edgar:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of records, is based on Ark. Code Ann.§ 25-19-105(c)(3)(B)(i) (Supp. 2019). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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 the personnel files of now-former employees who had failed drug/alcohol screening tests over a three-year period. You state that it is your opinion, as records custodian for the City, that given "the sensitive nature surrounding the termination of these individuals, these are personnel records to the extent that disclosure would constitute a clear and unwarranted invasion of personal privacy [citing Ark. Code Ann.§ 25-19-105(b)(l2)], and is of no compelling public interest to disclose" (citing Ark. Code Ann. § 25-19-105( c)( 1)). You request my opinion on whether the decision to withhold the records is consistent with the FOIA.

RESPONSE

You have not identified any particular record(s) that formed the basis for your apparent decision to withhold all of the requested records. Without that information, I cannot meaningfully opine on your decision. I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed.

323 CE N TER STR EET. SUI TE 200 · LITTLE ROCK . A RKA N SAS 72201 TE L EPH O N E (501) 682-2007 · FAX (5 01) 682-8084 A RKA N SASAG .GOV

Sandy R. Edgar
Opinion No. 2020-024
Page 2

Additionally, based on your correspondence, it appears that you have classified the records at issue as the former employees' personnel records. Yet you have, at least in part, applied the disclosure test applicable exclusively to employee-evaluation records. It is the responsibility of the custodian, in the first instance, to properly classify each responsive record and employ the applicable test for disclosure to each record.

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 appear to be met. The request was made to the City of Little Rock, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. 1 Because the records are held by a public entity, they are presumed to be public records, 2 although that presumption is rebuttable. 3 Accordingly, the analysis proceeds to the third element, that is, whether any exceptions preclude disclosure.

1
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 that constitute a record of the performance or lack of performance of official functions ... carried out by a public official or employee .... " Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019).

3
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S. W.3d 718, 722 (2007) ("the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not 'constitute a record of the performance or lack of performance of official functions,"' citing Op. Att'y Gen. 2005-095).

Sandy R. Edgar
Opinion No. 2020-024
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records. " 6 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.

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 or job- performance records" that pertain to individual employees. 7 Whether a particular record meets this definition is a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then

4
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 Acr 205-06 (Arkansas Law Press, 6th ed., 2017).

5
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." 6 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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 ifthere is a compelling public interest in their disclosure." 7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Sandy R. Edgar
Opinion No. 2020-024
Page 4

it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. " 8

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 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. 10

The balancing test elaborated by Young v. Rice has two considerations the custodian must take into account. 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. 11 If the privacy interest is merely de minimis (that is, insignificant or trifling), then the public's interest in disclosure easily outweighs the privacy interest. Second, if the information gives 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. 12 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. 13 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. 14

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15

8
Ark. Code Ann. § 25-19-105(b )( 12).

9
308 Ark. 593, 826 S.W.2d 252 (1992).

10
Watkins, et al., at 208.

11
Young, 308 Ark. at 598, 826 S.W.2d at 255.

12
Id., 826 S.W.2d at 255.

13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Sandy R. Edgar
Opinion No. 2020-024
Page 5

Additionally, a requester's identity or motive for making a request under the FOIA is generally irrelevant as to whether a non-exempt public record must be released. 16 Again, 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. 17 This ordinarily precludes the custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld. 18

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 of the items that must not be disclosed 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)(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 (Ops. Att'y Gen. 2017-125, 2013-090);

16
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

17
See Ops. Att'y Gen. 2019-047, 2018-061.

18
See Ops. Att'y Gen. 2018-087, 2018-061; see also Op. Att'y Gen. 2014-094 (noting that "neither the Arkansas Legislature nor our appellate cou11s have allowed custodians to consider the subjective motive of the requester."). While the requester's subjective motive cannot be the basis for the decision, it can be considered by the custodian to determine whether it supplies a previously unseen objective public interest. Op. Att'y Gen. 2014-094 at n.8.

It should also be noted that the Legislature has not seen fit to include a generalized "harassment" exemption to the release of otherwise disclosable employee-related records. Op. Att'y Gen. 2019- 04 7 (and opinions cited therein).

Sandy R. Edgar
Opinion No. 2020-024
Page 6

• 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 FOIA likewise does not define. 19 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

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

1. 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). 22

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 office's opinions, have offered the following guidelines:

19
I will refer to this group of records as "employee-evaluation records."

20
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.

21
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

22
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

Sandy R. Edgar
Opinion No. 2020-024
Page 7

[l]t seems that the following factors should be considered in determining whether a compelling public interest is present: (I) 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" requirement. 23

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, 24 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 m the employee/employer relationship. 25

III. Application.

Based on the correspondence sent to me as part of your request, it appears that you have determined that the entire personnel file for each of the three former employees should be withheld from disclosure. It is unclear what your basis for that determination is.

You state that the City provided aggregate information to a requester under the FOIA in which the City made it known that, over a three-year period, three unnamed employees with the Public Works Department had been terminated because of a "failure to pass a drug/alcohol screening." The disclosure of this information led to

23
Watkins, et al., at 238-39 (footnotes omitted).

24
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").

25
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

Sandy R. Edgar
Opinion No. 2020-024
Page 8

a subsequent request under the FOIA for the three former employees' personnel files, a request that would inevitably result in identifying the employees.

In your request for my opinion, you do not state categorically that you have denied the request for the employees' personnel files, but the implication is there. You state your opinion (but not your determination) that the requested records comprise the former employees' personnel records. You also suggest that the high standard for withholding personnel records, discussed above, is met in this case because disclosure would be a "clearly unwarranted invasion of personal privacy. " 26 However, you do not state what formed the basis for your opinion that none of the records should be disclosed. Without this information, this office is unable to say one way or another whether the City has correctly decided to withhold the former employees' personnel files. Personnel files usually include several different kinds of records (see supra n.4), many of which are typically open to public inspection (although some information may need to by redacted, often on privacy grounds).

I believe that the identification of the affected former employees could subject them to potential embarrassment or could affect their future employment. Thus, a substantial privacy interest likely is present. But without a review of the records and the facts surrounding the administration of the screenings, including the relevant departmental policies and procedures, I am unable to definitively state whether the public's interest under the Young v. Rice balancing test is met. The public could conceivably have a substantial interest in this information, but I do not have sufficient information to make that determination. 27 You must consult with your regular counsel to determine whether there is a clearly unwarranted invasion of the former employees' personal privacy sufficient to override the public's interest.

You also state that the records (and thus the former employees' identities), despite being classified as personnel records as stated above, are or could be protected by the exemption for employee-evaluation records. 28 This suggests that at least some

26
Ark. Code Ann. § 25-19-105(b )( 12). See supra text accompanying n.8-15. 27 C./. Op. Att'y Gen. 2009-096. That opinion, also prepared for the City of Little Rock, concerned police officers and psychological testing and so-called "pass/fail" drug screening. In that opinion, my predecessor stated that, when it concerns police officers, there likely would be a higher public interest involved. In the instant case, the City would likely need to consider that the three former employees worked for the Public Works Department, and consider the nature of their work, such as office work as compared to those who engaged with the public or were involved in work that could potentially have public safety ramifications. 28 See supra text accompanying n.19-25 for the discussion of this exemption.

Sandy R. Edgar
Opinion No. 2020-024
Page 9

of the records are properly classified as records of that type. Not having the records before me, I cannot opine on how any of the records should be so classified. This ambiguity highlights the critical importance of a custodian's correctly classifying the records at issue in the first instance and then applying the appropriate test(s) for disclosure.

In sum, without having seen the records at issue and lacking sufficient surrounding facts, I am unable to definitively opine on whether your apparent decision to withhold the records from disclosure is consistent with the FOIA.

Sincerely,

L. /'/<:~"fa
LESLIE RUTLEDGE
Attorney General