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

Nicholas Norfolk asked whether Little Rock could release his personnel file, disciplinary file, and ID picture under Arkansas FOIA, and what information the city would have to redact. The custodian planned to release his personnel file and completed suspension or termination records after redacting sensitive personal information. The Attorney General had not seen the records, so she could not decide whether that release decision complied with FOIA or whether any particular part of the files or ID picture could be disclosed.

The AG instead explained the tests the custodian had to apply. The custodian first had to decide whether each document was a personnel record or an employee-evaluation record. Personnel records were generally open unless disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records could be released only if the employee had been suspended or terminated, the administrative proceeding was final, the record formed a basis for that decision, and a compelling public interest supported disclosure. Even a releasable record might require redaction of specific information.

The opinion also said a records subject’s view that release would invade privacy did not decide the personnel-record question: the privacy test was objective. Footnote 19 added a narrower point about the requester’s motive: it could not be the basis for a release decision, but could reveal an objective public interest the custodian had not previously seen.

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

Did the AG approve release of Norfolk’s file?
No. She wrote, “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.” The custodian had to classify and assess each record first.

Did the opinion decide whether the ID picture could be released? No. The AG had not seen it and declined to answer questions about the releasability of specific information.

What privacy test applied to personnel records?
Under the opinion’s account of Young v. Rice, the custodian had to weigh any more than minimal personal privacy interest against the public’s interest in disclosure. The balance favored disclosure, but the result depended on the particular record.

When could an employee-evaluation record be released?
The opinion required all four elements: suspension or termination, final administrative resolution, a record that formed a basis for the decision, and a compelling public interest in disclosure. The AG did not decide whether Norfolk’s records met those elements.

Could a releasable file still require redactions?
Yes. The opinion listed personal contact information, Social Security numbers, medical information, and other discrete categories that must be redacted even when the document as a whole met the disclosure test. It did not decide what to redact from Norfolk’s files.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed the subject of certain employee-related records to request an AG opinion on whether a custodian’s decision was consistent with FOIA. The AG said this duty did not authorize her to decide the requester’s separate question about exactly what to release or redact. She described the privacy balance for personnel records under § 25-19-105(b)(12) and the four-element release test for evaluation records under § 25-19-105(c)(1), while leaving their application to the unseen records with the custodian.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019)

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

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. | am not authorized to address specific questions posed

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 * FAX (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

Mr. Nicholas Norfolk
Opinion No. 2020-033
Page 2

by the custodian, subject, or requester.! Accordingly, ] 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, | 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.‘

' See, e.g., Op. Att’y Gen. No. 2013-088; see also Op. Att’y Gen. Nos. 2010-140, 2009-161, 2006- 071, 1996-386.

? 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).

Sd.

4 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).

Mr. Nicholas Norfolk
Opinion No. 2020-033
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Not having seen any of the records in question, | 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

5 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. £.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).

© 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...
[plersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

7 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.”

Mr. Nicholas Norfolk
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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. Ifa 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

5 See, e.g., Ops. Att’y Gen. 2015-072, 99-147; Watkins, e¢ al., at 202.
° Ark. Code Ann. § 25-19-105(b)(12).

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

'! Watkins, e7 al., at 208.

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

'3 Td, 826 S.W.2d at 255.

Mr. Nicholas Norfolk
Opinion No. 2020-033
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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);

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

'S Eg, Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, ef al., at 207.

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

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

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

° See Ops. Atty Gen. 2018-087, 2018-061; see also Op. Att’y Gen. 2014-094 (noting that “neither the Arkansas Legislature nor our appellate courts 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 an objective public interest previously unseen. 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- 047 (and opinions cited therein).

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• 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:

|. The employee was suspended or terminated (i.e., level of discipline);

20 | will refer to this group of records as “employee-evaluation records.”

2! 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.

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

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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.

8 Ark, Code Ann. § 25-19-105(c)(1); Op. Att’y Gen. 2008-065. 4 Watkins, ef al., at 238-39 (footnotes omitted).

°5 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”).

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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, | 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

6 Cf Op. Att'y Gen. 96-168; Watkins, ef a/., at 223.

27 Supra nl.