Can a city custodian withhold all employee leave and FMLA records as a privacy invasion before even pulling the records to look at them?

Plain-English summary

Markett Humphries, the City of Little Rock's FOIA coordinator, asked AG Leslie Rutledge whether the city was right to withhold a category of personnel records before reviewing them.

The FOIA request had two parts. First, "all written requests by any City of Little Rock employee for leave due to a significant illness for a family member, and documents showing that such leave requests were approved or denied." Second, "all written requests for leave by a City of Little Rock employee that the City of Little Rock deemed a Family Medical Leave Act request, and documents showing whether the request for leave was approved or not."

The custodian had concluded the records were "personnel records" that "would not be releasable under the 'clearly unwarranted invasion of personal privacy' exemption." She wanted the AG to bless that withholding decision.

The AG's answer split the question.

On classification, she agreed: leave and attendance records have consistently been treated as personnel records, not as employee-evaluation records (citing Ops. Att'y Gen. 2016-031, 2013-022, 2012-136). So the personnel-records test (Young v. Rice balancing) applied.

On withholding, she pushed back. The AG had also consistently opined that "attendance/leave records are generally disclosable" under the Young balancing analysis, because while there is a greater-than-de-minimis privacy interest in someone's leave use, that interest is usually outweighed by the public's interest in seeing whether agencies adhere to their leave policies. The "clearly unwarranted" standard is a high bar, and meeting it requires a record-by-record assessment.

If the city had withheld these records based purely on the wording of the request (i.e., a categorical decision about leave/FMLA records as a class), that decision was inconsistent with FOIA. If, on the other hand, the city had pulled the actual responsive documents and found that, after applying the standard redactions and segregating exempt material under § 25-19-105(f)(2), there was no "reasonably segregable portion" left to release, then the withholding could be defended.

The AG also reminded the custodian of two practical limits. First, the responsibility lies with the custodian to identify responsive records and to determine whether the request is sufficiently specific to permit location "with reasonable effort" (§ 25-19-105(a)(2)(C)). The request here had no time frame, which might mean the requester needed to narrow it. Second, custodians are not required to compile information or create new records in response to a FOIA request (§ 25-19-105(d)(2)(C)).

The big takeaway: a custodian cannot use the personnel-records privacy exemption as a global denial tool. Each request must trigger an actual review of identified records, with redactions where required and release of any segregable non-exempt portions.

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 aren't all employee leave records exempt as a privacy invasion?
Because the "clearly unwarranted" privacy threshold is high, and the public has a real interest in knowing whether public agencies follow their own leave rules. The fact that an employee took sick or vacation leave shows whether the agency is properly administering those leave categories. The AG's prior opinions repeatedly held that attendance and leave records are generally disclosable.

What kinds of redactions could the custodian still make to released leave records?
The standard list applies: dates of birth, social security numbers, personal contact information, marital status and dependent information, employee personnel numbers, undercover-officer identifying information, driver's license numbers, insurance coverage, tax/withholding, payroll deductions, banking information, and exempt medical information. The opinion specifically flagged that an FMLA request could contain medical information that needs redaction even when the underlying record is otherwise releasable.

What does 'reasonably segregable portion' mean?
Under Ark. Code Ann. § 25-19-105(f)(2), if a record contains both exempt and non-exempt information, the custodian must release the non-exempt portion after deleting the exempt material. Withholding the entire record is appropriate only if there is nothing reasonably segregable left after redaction. So a leave record containing redacted medical details still has releasable parts (the date, the leave category, approval/denial) unless the redactions consume essentially the whole document.

Could the city deny the request on grounds that it was too broad?
Possibly. The AG noted that the request did not include a time frame and might fail the "reasonable effort" specificity standard in § 25-19-105(a)(2)(C). The city could ask the requester to narrow the scope to a specific time period. But that is a different basis for denial than the privacy exemption.

Was there an FMLA-specific exemption?
The AG did not invoke any. The FMLA-specific framing of the request did not, by itself, create a confidentiality bar; the analysis stayed within the personnel-records framework, with medical information potentially redacted under the standard rules.

Background and statutory framework

Arkansas FOIA requires three elements for disclosure: the request must reach an entity subject to FOIA, the documents must be public records, and no exemption can apply. Public records held by a public entity are presumed to be public records (Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007)), and the burden is on the entity resisting disclosure to overcome that presumption.

Once a record is classified as a "personnel record," the privacy exemption in Ark. Code Ann. § 25-19-105(b)(12) requires application of the Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test: weigh the public's interest in disclosure against the individual's privacy interest, with the scale tilted toward disclosure. The person resisting disclosure carries the burden under Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998).

Leave and attendance records have a settled place in that framework. The AG's prior opinions, especially Op. Att'y Gen. 2016-031, treat them as personnel records that nevertheless usually have to be released, because the public's interest in agency leave-policy adherence outweighs the relatively modest privacy interest in showing that someone took leave.

The "reasonably segregable portion" requirement of § 25-19-105(f)(2) is the operational bridge: when redaction is enough to remove exempt material, the rest must come out.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of "public records")
• Ark. Code Ann. § 25-19-105(a)(2)(C) (sufficient-specificity requirement on requesters)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information exempt)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records privacy exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information exempt)
• 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 procedure)
• Ark. Code Ann. § 25-19-105(d)(2)(C) (no obligation to compile records)
• Ark. Code Ann. § 25-19-105(f)(2) (reasonably segregable portion requirement)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)

Prior opinions referenced:

• Ops. Att'y Gen. 2016-031, 2013-022, 2012-136 (leave records as personnel records, generally disclosable)
• Ops. Att'y Gen. 2015-072, 99-147 (definition of personnel records)
• Ops. Att'y Gen. 2014-094, 2007-070 (employee personnel number redaction)
• Op. Att'y Gen. 2001-080 (marital status and dependents)
• Op. Att'y Gen. 2007-064 (date of birth)
• Ops. Att'y Gen. 2006-035, 2003-153 (SSN, medical information)
• Ops. Att'y Gen. 2017-125, 2013-090 (driver's license)
• Op. Att'y Gen. 2004-167 (insurance coverage)
• Ops. Att'y Gen. 2005-194, 2003-385 (tax information)
• Op. Att'y Gen. 98-126 (payroll deductions)

Source

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

Original opinion text

Opinion No. 2020-049
September 30, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Markett L. Humphries, FOIA Coordinator
Administration Division
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Mr. Humphries:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian, 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, among other things, "all written requests by any City of Little Rock employee for leave due to a significant illness for a family members, and documents showing that such leave requests were approved or denied" and "all written requests for leave by a City of Little Rock employee that the City of Little Rock deemed a Family Medical Leave Act request, and documents showing whether the request for leave was approved or not." You have determined that the requested records constitute personnel records that "would not be releasable under the 'clearly unwarranted invasion of personal privacy' exemption." You ask whether your decision to withhold the requested records is consistent with the FOIA.

RESPONSE

Because I have not seen any records that would be responsive to your 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. However, I can opine generally about the custodian's classification of the records at issue and the custodian's decision to withhold those records.

Because leave/attendance records constitute personnel records, the custodian is, in my opinion, correct to classify the records being sought as "personnel records." But I question the custodian's decision to withhold those records as being a clearly unwarranted invasion of personal privacy. If the custodian has made this determination based simply upon the wording of the request, then the custodian's decision is inconsistent with the FOIA. However, if the custodian has made this determination after identifying and reviewing records responsive to the request, then the custodian's decision may be consistent with the FOIA.

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. Accordingly, given that I have no information to suggest that the presumption can be rebutted, 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.

Although I have not seen any records that would be responsive to the FOIA request, you have determined that the records being sought are personnel records. This office has consistently opined that leave requests and attendance records constitute personnel records. Therefore, in my opinion, you are correct to classify the records being sought as "personnel records." Accordingly, I will limit my discussion to records of that type.

The FOIA does not define "personnel records," but this office has consistently opined that the term refers to 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).

III. Application.

At issue is a request for "all written requests by any City of Little Rock employee for leave due to a significant illness for a family member, and documents showing that such leave requests were approved or denied," and a request for "all written requests for leave by a City of Little Rock employee that the City of Little Rock deemed a Family Medical Leave Act request, and documents showing whether the request for leave was approved or not." This office has consistently opined that attendance/leave records are generally disclosable under the foregoing two-part balancing test, based on the following analysis:

While there is arguably a greater than de minimus privacy interest in the fact that an employee used sick or annual leave, that interest is, in my opinion, outweighed by the balancing test's second step. Specifically, disclosing whether an employee used annual or sick leave sheds light on an agency's performance of its duties because, among other things, it shows whether the agency is properly adhering to the policies limiting the amount of leave (whether annual or sick) that employees may take.

However, you have determined that the requested records constitute personnel records that "would not be releasable under the 'clearly unwarranted invasion of personal privacy' exemption." The precise basis for your denial is unclear, but I gather that you have determined, based solely upon the wording of the request, that any responsive records would be exempt under Ark. Code Ann. § 25-19-105(b)(12).

If this is the case, that decision is inconsistent with the FOIA. Revealing that an employee submitted a leave request that the city deemed a "Family Medical Leave Act request" and any documents showing whether the request was approved or denied would not, in and of itself, be sufficient to constitute a "clearly unwarranted invasion of personal privacy." And while revealing that an employee submitted a leave request "due to a significant illness of a family member," as well as any documents showing whether the request was approved or denied, might constitute an invasion of an employee's personal privacy, possibly even a significant invasion, I cannot say that the decision to withhold the release of such records meets the high "clearly unwarranted" standard if based solely on the wording of the request. On the other hand, if you have already identified records responsive to the request, and after reviewing those records have determined that those records contain so much protected information that there would be no "reasonably segregable portion" left after redactions, then your decision may be consistent with the FOIA.

Ultimately, given the information before me, I cannot definitively say that there is a sufficient basis for you to deny the requests. Additionally, I must point out that it is the responsibility of the custodian to determine, in the first instance, which records are responsive to the FOIA request and whether the request is sufficiently specific to enable the custodian to locate the pertinent records "with reasonable effort." As a practical matter, it may well be that the requester will need to narrow the request, as it does not include a time frame and may therefore not be sufficiently specific to enable the custodian to locate the records with reasonable effort. Finally, the custodian is not required to compile information or create a record in response to a FOIA request.

Sincerely,

LESLIE RUTLEDGE
Attorney General