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

Plain-English summary

Little Rock received a FOIA request for records mentioning unemployment claims, including emails, memoranda, and letters. Its FOIA coordinator sent the Attorney General redacted examples of “Notice to Last Employer” and “Notice to Base Period Employer” forms and proposed withholding them. The AG reviewed two such records and agreed that they were personnel records whose release would be a clearly unwarranted invasion of personal privacy under Arkansas FOIA.

The AG had not seen the other records covered by the broad request, so she could not decide their release or specific redactions. She said generally that FOIA’s personnel-records exemption would prevent disclosure of specific benefit information in records about individual employees. The opinion did not decide that every record mentioning an unemployment claim was exempt.

The coordinator also asked about unemployment claims and adjudications under Ark. Code Ann. § 11-10-314. Footnote 1 said such records can be exempt under that separate statute, but the AG expressly declined to assess how it or any related statute applied to the records in this request. Her holding on the two notices rested on FOIA’s personnel-records exception.

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

Could Little Rock withhold the two unemployment notices? Yes. The AG classified the two reviewed examples as personnel records and found that disclosure would be a clearly unwarranted invasion of personal privacy under the FOIA test.

Did the AG decide whether all unemployment-related records were confidential? No. She had not seen the other records and could not decide whether each was releasable. She gave the narrower general statement that specific benefit information in records about individual employees would be protected by the personnel-records exception.

Did the separate unemployment statute apply to the city’s records? The AG did not decide. Footnote 1 said unemployment-claim records can be exempt under Ark. Code Ann. § 11-10-314, then expressly declined to assess that statute’s application to potentially responsive records.

What did the AG say about the breadth of the request?
Footnote 20 said the custodian had to identify responsive records and decide whether the request was specific enough to locate them with reasonable effort. The AG’s review began after the custodian identified records.

Background and statutory framework

The opinion applied Ark. Code Ann. § 25-19-105(b)(12), which protected personnel records to the extent release would clearly and unwarrantedly invade personal privacy. Under Young v. Rice, the custodian had to weigh the personal privacy interest against the public interest in disclosure, with the balance favoring disclosure. The AG applied that test to the two notices supplied. She described § 11-10-314 as a possible separate exemption and declined to apply it.

Citations

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019)
• Ark. Code Ann. § 11-10-314 (Supp. 2019)

Case:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

Source

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

Original opinion text

STATE OF ARKANSAS
Tue Attorney GENERAL
Lesuie 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. | must

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Markett L. Humphries, Esq.
Opinion No, 2020-052
Page 2

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
L 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.‘

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. See Op. Att’y Gen. 2016-118 (and opinions cited therein). 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). See Op. Att’y Gen. 2017-085 (citing Ops. Att’y Gen. 2012-072, 2010-057). 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, See Op. Att’y Gen. 2018-015,

? 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),

Id.
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.c., if they do not

Markett L. Humphries, Esq.
Opinion No. 2020-052
Page 3

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.

I. 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.

‘constitute a record of the performance or lack of performance of official functions,” citing Op. Att’y Gen. 2005-095).

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).

6 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....
[p]ersonnel 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 ¢ compelling public interest in their disclosure.”

Markett L. Humphries, Esq.
Opinion No, 2020-052
Page 4

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. 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 outweigh the public’s interests.'4 The fact that the subject of records may consider

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

'© 308 Ark. 593, 826 S.W.2d 252 (1992).

'l Watkins, ef a/., at 208.

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

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

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

Markett L. Humphries, Esq.
Opinion No. 2020-052
Page 5

release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.'5

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.!7 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:

e 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));

e Employee personnel number (Ops. Att’y Gen. 2014-094, 2007-070);

e Marital status of employees and information about dependents (Op. Atl’y Gen. 2001-080);

'S Fg, Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, e¢ al., at 207. '© 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.

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

'9 See Ops. Att’y 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),

Markett L. Humphries, Esq.
Opinion No. 2020-052
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e Dates of birth of public employees (Op. Att’y Gen. 2007-064); e Social security numbers (Ops. Att’y Gen. 2006-035, 2003-153);
© Medical information (Op. Att’y Gen. 2003-153);

e Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann, § 25-19-105(b)(10));

e Driver’s license number and photocopy of driver’s license (Ops. Att’y Gen. 2017-125, 2013-090);

e Insurance coverage (Op. Att’y Gen. 2004-167);

e Tax information or withholding (Ops. Atty Gen. 2005-194, 2003-385); e Payroll deductions (Op. Att’y Gen. 98-126); and

e Banking information (Op. Att’y Gen. 2005-194).

I. 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.?!

20 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.” Ark. Code Ann. § 25-19- 105(a)(2)(C). My duty arises after records have been located or identified in response to the FOIA request. | am not authorized or required to advise the custodian regarding the selection of responsive documents. £.g., Ops. Att’y Gen. 2020-038, 2006-158.

2! See supra, note 1; Ops. Att’y Gen. 2010-057, 2003-073.

Markett L. Humphries, Esq.
Opinion No, 2020-052
Page 7

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,
De (Kbit

LESLIE RUTLEDGE
Attorney General

2 See Op. Att’y Gen. 2013-057 (and opinions cited therein).