Can a state employee block release of her suspension records under Arkansas FOIA because she's afraid of harassment?

Plain-English summary

Tammy Kriesel, an Arkansas Department of Health (ADH) employee, asked AG Leslie Rutledge to block release of a record about her suspension. ADH had received the same broad FOIA request that produced the parallel Wylie (2020-039) and Planey (2020-038) opinions: "all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020." The custodian intended to release one record responsive to the request, with redactions of personal information.

Kriesel's objection was straightforward: she feared release would cause harassment to her and her family. The AG noted this concern but ruled it was not a basis to withhold the record.

The legal answer rests on a straightforward observation about the structure of the Arkansas FOIA. The AG noted (with citation back to Op. Att'y Gen. 2019-047 and earlier opinions): "the Arkansas General Assembly has not established a generalized harassment exception to the release of otherwise disclosable employee-related public records." The harassment concern is a real-world worry but it does not translate into a legal exemption.

The Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test for personnel records does take privacy seriously, but the test is objective: it asks whether the records, on their face, shed light on the workings of government for the general public. The subjective fears or motives of the records subject are not part of the analysis. The custodian decides classification (personnel vs. evaluation), then applies the applicable test (Young balancing for personnel, four-prong release test for evaluation under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387).

Having reviewed the record in question, the AG concluded the custodian's decision to release it as redacted was consistent with FOIA. The opinion did not separate out whether the record was personnel or evaluation; the conclusion that the custodian's decision was consistent applied either way.

This opinion stands as a clear statement that a records subject's worry about adverse personal consequences from disclosure cannot, by itself, defeat an Arkansas FOIA release. The legislature could create such an exception, but it has not.

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 isn't fear of harassment a basis to withhold records?
Because the Arkansas FOIA's exemption framework is statutory. The legislature has enumerated specific exemptions (personnel records, evaluation records, undercover-officer information, etc.), and "harassment" is not on the list. The AG cannot invent an exception that the legislature did not enact.

Could a documented threat of harassment change the analysis?
The opinion did not address this. As a matter of constitutional privacy under McCambridge v. City of Little Rock (cited in Op. Att'y Gen. 2020-051), there is a narrow constitutional-privacy backstop for "constitutionally protectable information." A specific, documented threat of harm might engage that backstop in extreme cases, but garden-variety fear of harassment does not.

What can a records subject do if release would actually cause harm?
The opinion is silent on this, but practical options include: (1) civil litigation in circuit court under Ark. Code Ann. § 25-19-107 to stop the release if a legitimate exemption arguably applies, (2) requesting law-enforcement protection if a specific threat materializes, (3) lobbying the legislature for a future exception. None of these is offered as effective on a 2020 timeframe; they are simply the avenues outside the AG-review process.

What about the privacy interest in the Young balancing test?
That interest is recognized but not the same thing as harassment fear. The Young privacy interest is about the personal or intimate nature of the information itself (medical conditions, family circumstances, etc.). Generalized fear of how others might react to disclosure of public-employment information is not the same as a privacy interest in the information.

Was Kriesel's record an evaluation record or a personnel record?
The opinion did not specify. Because the AG concluded the custodian's decision was consistent with FOIA in either case, the classification did not affect the outcome.

What does this mean for state employees subject to FOIA-disclosed discipline records?
That subjective objections, even sympathetic ones, will not block release if the underlying records are otherwise disclosable. State employees can expect substantiated discipline records to be subject to public release where the standard tests are met, regardless of how worried they are about the consequences.

Background and statutory framework

Same framework as the other 2020 ADH FOIA opinions (2020-038, 2020-039) and the broader Arkansas FOIA case law. Ark. Code Ann. § 25-19-105(b)(12) for personnel records, Ark. Code Ann. § 25-19-105(c)(1) for evaluation records. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), supplies the personnel-records balancing test (objective, public-interest-tilted, with the burden on the resisting party per Stilley v. McBride). Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, supplies the evaluation-records definition.

The "no generalized harassment exception" rule is articulated in Op. Att'y Gen. 2019-047 and the opinions cited there. It is consistent with the AG's broader view that subjective considerations (motive, fear, interpersonal dynamics) are not legally cognizable under the Arkansas FOIA exemption scheme.

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) (employee-evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

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 opinion referenced:

• Op. Att'y Gen. 2019-047 (no generalized harassment exception)

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. 2020-036
July 21, 2020
Tammy Kriesel
c/o Reginald Rogers, Deputy General Counsel
Arkansas Department of Health
4815 W. Markham Street, Slot 31
Little Rock, AR 72205

Dear Ms. Kriesel:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested 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 Arkansas Department of Health ("ADH") has received a request under the FOIA for records of all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020. You have provided a copy of a record that the custodian has identified as responsive to the request, and that the custodian intends to release with redactions. You object to the release of the record based on your fear that the release will cause harassment to you and your family.

RESPONSE

Having reviewed the record in question, it is my opinion, based on the definitions and standards discussed below, that the custodian's decision to release it as redacted is consistent with the FOIA. With regard to your stated objection, the Arkansas General Assembly has not established a generalized harassment exception to the release of otherwise disclosable employee-related public records. Accordingly, it is my opinion that your stated objection to the release is not, standing alone, a sufficient basis for reversing the custodian's decision.

DISCUSSION

[Sections I and II of the original opinion reproduce the same general FOIA disclosure standards, the personnel-records exception, the redaction-categories list, and the employee-evaluation exception standards as detailed in Op. Att'y Gen. 2020-048. The same statutory citations and the same cases (Pulaski County v. Arkansas Democrat-Gazette, Young v. Rice, Stilley v. McBride, Thomas v. Hall) apply.]

Sincerely,

LESLIE RUTLEDGE
Attorney General