Can a city employee block release of his personnel file, disciplinary file, and ID photo under Arkansas FOIA, and what gets redacted?

Plain-English summary

Like the companion opinion 2020-032 issued the same day for a different City of Little Rock employee, this opinion responded to a subject-of-records request from Nicholas Norfolk after the City's records custodian decided to release Norfolk's personnel file, disciplinary file, and ID picture. The custodian had said the personnel file was releasable, that disciplinary actions in the form of suspensions or terminations were releasable once the administrative process had reached completion, and that sensitive personal information (home address, date of birth, telephone, Social Security number) would be redacted before release. Norfolk asked the AG two questions: was the release decision consistent with the FOIA, and if so, what specifically had to be released and what redacted?

AG Leslie Rutledge agreed to answer only the first question. The second one, she explained, fell outside her statutory role under Ark. Code Ann. § 25-19-105(c)(3)(B), which authorizes her to opine only on whether the custodian's overall decision is consistent with FOIA. The statute does not let her play document reviewer or itemize specific redactions for the custodian. She had also not seen any of the records.

On the first question, she set out the standard Arkansas FOIA framework for employment-related records. Her substantive bottom line was that the custodian had to do two things in proper sequence:

1. Classify each responsive record as either a "personnel record" or an "employee evaluation or job performance record." Most of what is in a personnel file fits one bucket or the other, and the test for disclosure differs by bucket.
2. Apply the appropriate test:
   • Personnel records: open to public inspection unless disclosure would be "a clearly unwarranted invasion of personal privacy" under the two-step Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test, with the scale tipped toward disclosure.
   • Employee evaluation or job performance records: closed unless all four prongs of the Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, test are met, that is, suspension or termination, final administrative resolution, the records formed a basis for that decision, and a compelling public interest.

She also walked through the standard list of items that have to be redacted from any released personnel record:

• Personal contact information of public employees (Ark. Code Ann. § 25-19-105(b)(13))
• Employee personnel number
• Marital status and dependent information
• Dates of birth
• Social Security numbers
• Medical information
• Identifiers for certain undercover law enforcement officers (Ark. Code Ann. § 25-19-105(b)(10))
• Driver's license number and photocopies of driver's licenses
• Insurance coverage
• Tax information and withholding
• Payroll deductions
• Banking information

The opinion did not specifically address whether an employee ID picture is itself releasable. It treated the broader question of records release within the framework above and noted only that the custodian had to make the classification and disclosure-test calls in the first instance.

Read against its companion 2020-032, this opinion is more restrained: where 2020-032 told the records subject directly that his "invasion of privacy" objection was generally not a sufficient basis to withhold otherwise disclosable records, here the AG drew a sharper line about her own role. She is not authorized to answer the subject's "what is releasable and what must be redacted" questions.

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

What is the AG actually authorized to decide in a FOIA opinion request like this?
Only one thing: whether the custodian's overall release decision is consistent with the Arkansas FOIA. The AG cited Ark. Code Ann. § 25-19-105(c)(3)(B) and prior opinions (Op. Att'y Gen. 2013-088, 2010-140, 2009-161, 2006-071, 1996-386) for the rule that her statutory role does not extend to specific questions posed by the custodian, subject, or requester. Document-by-document redaction calls belong to the custodian.

What about the ID picture, was that releasable?
The opinion did not single out the ID photo for separate analysis. It treated all the requested records under the standard two-track framework. The custodian had already determined the personnel file was releasable, and the AG noted she was not authorized to address the subject's specific question about what within the records was releasable.

What is the difference between a personnel record and an evaluation record under Arkansas FOIA?
A personnel record is essentially everything else in the file that is not an evaluation or job-performance record. Personnel records are released unless Young balancing tips against disclosure. Evaluation or job-performance records are records created by or at the behest of the employer to evaluate the employee, detailing the employee's performance or lack of performance on the job, including misconduct investigation files. They are closed unless the four-prong Thomas v. Hall test is satisfied.

What is the four-prong Thomas v. Hall test?
The employee must have been suspended or terminated; there must have been a final administrative resolution of the suspension or termination; the records in question must have formed a basis for that disciplinary decision; and the public must have a compelling interest in disclosure. The compelling-interest prong is fact-bound, but commentators (cited by the AG) point to the nature of the infraction (especially violations of public trust or gross incompetence), any related public controversy, and the employee's rank within the agency.

Can the records subject's preference influence the disclosure decision?
No, not by itself. The AG explained that the test for "clearly unwarranted invasion of personal privacy" is objective. The records subject's view that disclosure would invade his privacy is irrelevant to the analysis. (The companion opinion 2020-032 said this even more directly to a similarly situated City of Little Rock employee.)

What if I am the records subject and I disagree with the custodian's decision after the AG opinion?
The AG opinion is advisory only. The remedy at the time of this opinion (2020) for a person dissatisfied with a FOIA disclosure decision was to seek judicial review under the FOIA. Because the legal landscape may have changed since then, anyone facing this situation today should check current Arkansas FOIA case law and any statutory amendments before deciding next steps.

Background and statutory framework

This opinion sits in the same procedural slot as its companion 2020-032: both came in under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which authorizes the custodian, requester, or subject of certain employee-related records to seek an AG opinion on whether the custodian's release decision is consistent with FOIA. Under Ark. Code Ann. § 25-19-105(c)(3)(B), the AG's review is bounded: she may opine on the consistency of the custodian's decision, but is not authorized to answer specific questions about what to release or what to redact.

The substantive framework is the standard two-track Arkansas FOIA approach for employment-related records:

• Personnel records. Ark. Code Ann. § 25-19-105(b)(12) exempts them only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), applies a two-step balancing test, with the presumption favoring disclosure.
• Employee evaluation or job performance records. Ark. Code Ann. § 25-19-105(c)(1) closes them except where all four Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, prongs are met (suspension or termination; final administrative resolution; records formed a basis; compelling public interest).

The standard list of items that must be redacted from any released personnel record (personal contact information, dates of birth, Social Security numbers, medical information, undercover-officer identifiers, etc.) traces both to the statute (Ark. Code Ann. § 25-19-105(b)(10) and (b)(13)) and to a series of prior AG opinions identified in the citations below.

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) (limit of AG review scope)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review by custodian, requester, or subject)

Cases:

• Pulaski County v. Arkansas 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:

• Ops. Att'y Gen. 2013-088, 2010-140, 2009-161, 2006-071, 1996-386 (AG cannot answer specific custodian/requester/subject questions)
• Ops. Att'y Gen. 2015-072, 99-147 (definition of personnel records)
• Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198 (objective test for invasion of privacy)
• Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107 (requester identity and motive irrelevant)
• Ops. Att'y Gen. 2019-047, 2018-061, 2018-087 (workings-of-government test)
• Op. Att'y Gen. 2008-065 (compelling-public-interest analysis)
• Op. Att'y Gen. 96-168 (purpose of evaluation-records exception)
• Treatise: John J. Watkins, Richard J. Peltz-Steele, Robert Steinbuch, The Arkansas Freedom of Information Act (6th ed., Arkansas Law Press 2017)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-033
July 16, 2020

Mr. Nicholas Norfolk
c/o Sandy Edgar, HR Specialist
Human Resources Department
Little Rock City Hall
500 West Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Mr. Norfolk:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the 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 your "personnel file, disciplinary file, and ID picture." The custodian of records has determined that "your personnel file is releasable and disciplinary actions in the form of a suspension or termination are releasable if it [sic] reached completion of the administrative resolution process." The custodian has also stated that all sensitive personal information, such as home address, date of birth, telephone number, or Social Security number will be redacted prior to release. Your correspondence states that you "would like to confirm that the information is indeed releasable and that it is not an invasion of privacy." You also ask what information is permitted to be released and what must be redacted.

RESPONSE

My statutory duty is to state whether the decision of the custodian of records is consistent with the FOIA. I am not authorized to address specific questions posed by the custodian, subject, or requester. Accordingly, I can only answer your first question, which contains the custodian's decision.

Because I have not seen any records that would be responsive to the instant FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. Accordingly, I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "employee evaluation or job performance" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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

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 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." 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. 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 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, in Young v. Rice, 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. 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. 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. 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.

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 (Ops. 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 FOIA 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

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:

[I]t 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" requirement.

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, 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.

III. Application.

Because I have not reviewed the actual records at issue, I am unable to definitively opine on whether the custodian's decision is consistent with the FOIA. I must respectfully decline to answer the question you have posed regarding the releasability of specific information. My statutory duty under Ark. Code Ann. § 25-19-105(c)(3)(B) is to state whether the decision of the custodian of records is consistent with the FOIA. Strictly speaking, I am not authorized to address specific questions posed by the custodian, subject, or requester. But I can state based on the correspondence sent to my office that the custodian, in determining whether the requester is entitled to the personnel or employee-evaluation records at issue, must properly classify the documents and apply the appropriate disclosure test(s).

Sincerely,

LESLIE RUTLEDGE
Attorney General