Can a city refuse to hand over employees' unemployment insurance notices under Arkansas FOIA?

Plain-English summary

The City of Little Rock had received an Arkansas FOIA request for "any records from January 1, 2020 through the present date that mention unemployment claims," including emails, memoranda, and letters. Two of the responsive documents were "Notice to Last Employer" and "Notice to Base Period Employer," boilerplate forms the Arkansas Department of Workforce Services sends to employers when an individual files for unemployment insurance benefits. FOIA Coordinator Markett Humphries planned to withhold them under the personnel-records exemption.

She brought the question to AG Leslie Rutledge under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). The AG agreed with the withholding and added a separate-statute reminder.

On the FOIA personnel-records track, the AG ran the standard analysis. The notices contained employment-benefit information about specific employees. They fit the working definition of "personnel records" (records other than evaluation records that pertain to individual employees). Under the Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test, the privacy interest in unemployment-claim information is more than de minimis (it reveals an individual's financial position and benefits-eligibility), and the public-interest side of the balance does not outweigh that. So disclosure would be a "clearly unwarranted invasion of personal privacy" under Ark. Code Ann. § 25-19-105(b)(12). The withholding was consistent with FOIA.

On the broader request (anything else mentioning unemployment claims), the AG could not opine record-by-record because she had not seen any other documents. She gave a general rule: the personnel-records exemption will likely keep specific benefit information about individual employees out of public view.

The AG also flagged a parallel confidentiality statute the city should be aware of: Ark. Code Ann. § 11-10-314, the Workforce Services confidentiality provision. UI-related records held by the Department of Workforce Services are confidential under that statute (citing Op. Att'y Gen. 2017-085, citing 2012-072 and 2010-057). The AG's authority to opine ends at the FOIA personnel-records review, so she could not analyze how § 11-10-314 might independently apply to records on the city's side, but she put the city on notice that the substance was protected by more than just FOIA's personnel-records exemption.

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 are unemployment notices treated as personnel records and withheld, when leave records often must be released?
Both are personnel records under the Arkansas FOIA framework. The difference is in the Young v. Rice balancing. Disclosing whether someone took sick leave shows whether agencies follow their own leave rules; the public interest is high. Disclosing that an employee filed for unemployment benefits reveals personal financial circumstances with no commensurate agency-accountability gain. The privacy side wins under "clearly unwarranted."

What is Ark. Code Ann. § 11-10-314?
The confidentiality statute governing records held by the Arkansas Department of Workforce Services in connection with unemployment-insurance claims and adjudications. It is a separate statute from FOIA and creates a confidentiality regime regardless of the public-records framework. The AG noted it without deciding how it applies to copies of UI notices held by an employer instead of by Workforce Services.

Did the AG say all UI-related records are exempt?
No. She said the two specific notices reviewed were exempt, and that as a general matter the personnel-records exemption "will prevent the disclosure of specific benefit information contained in records pertaining to individual employees." Whether other records that "mention unemployment claims" (like an internal email about workforce-management policy) are exempt would depend on what they actually say.

What is the requester supposed to do if part of a record is exempt and part is not?
Ark. Code Ann. § 25-19-105(f)(2) requires the custodian to release any "reasonably segregable portion" after deleting exempt information. So if an internal email mentions an unemployment claim by name, the name and benefit details might come out and the rest could remain in the released version, depending on how segregable the information is.

What is the broader request-specificity issue?
The AG repeated the standard reminders: it is the custodian's job 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 custodian is not required to compile or create new records. A request for "any records that mention unemployment claims" is broad enough that the custodian and requester may need to negotiate scope.

Background and statutory framework

Arkansas's two-track personnel/evaluation framework controls release of employee-related records. For personnel records (Ark. Code Ann. § 25-19-105(b)(12)), the test is the Young v. Rice balancing under "clearly unwarranted invasion of personal privacy." For evaluation records (Ark. Code Ann. § 25-19-105(c)(1)), the four-prong release test applies. The AG saw only personnel-records issues here.

Unemployment-insurance records sit in two places. At the Department of Workforce Services, Ark. Code Ann. § 11-10-314 imposes confidentiality on UI claims and adjudications. At an employer (especially a public employer like the City of Little Rock), the same records are personnel records about individual employees, and the FOIA personnel-records exemption shields specific benefit information unless the public-interest side of the Young balancing prevails.

Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007), establishes the rebuttable presumption that records held by a public entity are public records. The presumption does not rebut classification or apply differently because of the records' subject matter; it just keeps the analysis moving past step one.

Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), puts the burden on the person resisting disclosure to show that privacy interests outweigh the public interest. In a personnel-records context where the employer is doing the resisting (often, as here, on behalf of the employee whose records are at issue), the city must articulate why disclosure would be clearly unwarranted. UI notices fit that bill.

Citations

Statutes:

• Ark. Code Ann. § 11-10-314 (Supp. 2019) (Department of Workforce Services confidentiality)
• 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)
• 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) (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:

• Op. Att'y Gen. 2017-085 (UI confidentiality under § 11-10-314)
• Ops. Att'y Gen. 2012-072, 2010-057 (related UI confidentiality)
• Op. Att'y Gen. 2018-015 (limits of AG review authority)
• Op. Att'y Gen. 2016-118 (limits of AG review authority)
• Ops. Att'y Gen. 2020-038, 2006-158 (custodian's responsibility to identify responsive records)
• Op. Att'y Gen. 2013-057 (personnel-records exemption shields specific benefit information)

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. 2020-052
October 14, 2020
Markett L. Humphries, J.D., M.P.A.
FOIA Coordinator
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Ms. 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 "any records from January 1, 2020 through the present date that mention unemployment claims" to include "emails, memorandum, [and] letters." You express your opinion that the requester "seeks public records that constitute a personnel record, specifically records of employment benefits individuals have sought through the Department of Workforce Services." You state that the responsive records "include, but are not limited to" notices regarding claims for unemployment insurance benefits. You have provided several redacted examples of these notices, which are entitled "Notice to Last Employer" and "Notice to Base Period Employer." You state that in your opinion, "such documents would be exempt from disclosure under the [FOIA] because the records contain employee benefit information, and as such would constitute a 'clearly unwarranted invasion of personal privacy.'" You ask whether your decision is consistent with the FOIA.

[You also pose a specific question regarding disclosure of claims for unemployment insurance benefits with the Arkansas Department of Workforce Services and related adjudications. I must decline to address that question. My authority to render opinions under the FOIA is limited to reviewing the custodian's decision as to whether certain employee-related records as defined by the FOIA are exempt from disclosure. Records related to claims for unemployment benefits can be exempt from disclosure pursuant to a separate statute, Ark. Code Ann. § 11-10-314 (Supp. 2019). But I cannot assess in this opinion the extent to which that statute or any other related statute applies to records that may be responsive to the FOIA request at hand.]

RESPONSE

Your decision that the notices are exempt from disclosure is consistent with the FOIA. Not having seen any other records that would be responsive to the request, I cannot definitively opine on the release of any other specific record or the need to redact any specific piece of information from an otherwise releasable record. However, I can opine generally that the FOIA's "personnel records" exemption will prevent the disclosure of specific benefit information contained in records pertaining to individual employees.

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.

In this instance, it appears from the limited information before me that the "personnel records" exemption is the relevant exemption under the FOIA. I will, therefore, limit my discussion to records of that type.

The FOIA does not include a definition of "personnel records." But this office has consistently opined that the term "personnel records" in the FOIA encompasses 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.

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.

[The opinion catalogues the standard redaction categories: personal contact information of public employees, employee personnel number, marital status and dependents, dates of birth, social security numbers, medical information, undercover-officer identifying information, driver's license number, insurance coverage, tax information, payroll deductions, and banking information.]

III. Application.

You state that the person making the FOIA request in this instance seeks "records of unemployment benefits individuals have sought through the Department of Workforce Services …." You have provided two records as examples of records you deem responsive to the request. You have determined that these records, entitled "Notice to Last Employer" and "Notice to Base Period Employer," are exempt from disclosure under the FOIA's "personnel records" exemption.

I agree that under FOIA, these records constitute personnel records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy under the test outlined above. While it is, therefore, my opinion that your decision to withhold these two records is consistent with the FOIA, you should be aware that records related to claims for unemployment benefits with the Arkansas Department of Workforce Services can be exempt from disclosure under a separate statute.

Because I have not seen any other records that would be responsive to the FOIA request at hand, I cannot definitively opine on the release of any other specific record or the need to redact any specific piece of information from an otherwise releasable record. However, I can opine generally that the FOIA's "personnel records" exemption will prevent the disclosure of specific benefit information contained in records pertaining to individual employees.

Sincerely,

LESLIE RUTLEDGE
Attorney General