Is a resignation letter from a city employee a personnel record that the city must disclose to a journalist who FOIAs it?

Plain-English summary

Stephin Booth was a former employee of the City of Little Rock. A news-media reporter sent the City a FOIA request for Booth's resignation letter. The City's custodian classified the letter as a personnel record and decided to release it. Booth invoked his statutory right under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to ask the AG whether the custodian's decision was consistent with the FOIA.

AG Leslie Rutledge could not opine on the actual document (the office did not have a copy of the letter), but said as a general matter that voluntary resignation letters are personnel records under Ark. Code Ann. § 25-19-105(b)(12). The Young v. Rice balancing test governs disclosure. The opinion's structure tracks the same FOIA-personnel-records framework laid out in Op. 2020-063 (Withers) and Op. 2021-003 (Silas):

• A "personnel record" is anything other than an "employee evaluation or job performance record" that pertains to an individual employee. Resignation letters fall squarely in that bucket when the resignation is voluntary.
• Disclosure goes through the two-step Young v. Rice balancing: (1) does the document raise a greater-than-de-minimis privacy interest, and (2) if so, does the public interest in disclosure outweigh it. The scale tips toward disclosure.
• Categorical redactions still apply: personal contact information (§ 25-19-105(b)(13)), date of birth, social security number, marital status, medical information, payroll deductions, banking information, and the like.
• The custodian, not the AG, makes the case-specific call after reviewing the actual letter.

The opinion includes a caveat the requester should keep in mind: a "constructive termination" (a resignation tendered in the face of certain, impending termination) could change the classification of the letter from a personnel record to an evaluation record. If a termination letter merely states the fact of termination, it stays a personnel record (Op. 2015-057); if it states the grounds, it can become an evaluation record subject to the four-prong gate. The same logic could in principle apply to a resignation letter that documented the reasons for separation.

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 is a resignation letter a personnel record and not an evaluation record?
Evaluation records are records created by the employer to evaluate the employee. A resignation letter is created by the employee, not the employer; it does not detail the employee's job performance from the employer's perspective. The letter typically just says "I resign as of date X." That makes it a personnel record under the AG's longstanding interpretation.

Could Booth keep his name out of the public record by objecting?
No. The opinion identified that under the Arkansas FOIA, the subject's subjective objection is irrelevant because the test is objective. The custodian must apply Young v. Rice on the merits, with the scale tipped toward disclosure.

What if the resignation was forced?
A forced or coerced resignation (one tendered in the face of certain, impending termination) might be treated as a "constructive termination," potentially reclassifying the letter as an evaluation record. The AG noted, however, that neither of Arkansas's appellate courts had addressed constructive termination in this context as of the time this opinion was issued. The classification call remains with the custodian.

Could the requester's identity (a journalist) matter?
Generally no. The opinion identified that a requester's identity or motive is irrelevant to whether a non-exempt public record must be released. There is no harassment exemption in the Arkansas FOIA. The custodian could consider the journalist's stated public-interest purpose only insofar as it bore on the objective public-interest analysis.

Is the resignation date by itself protected?
No. The date of separation is part of the personnel record. The categorical redactions cover items like date of birth, social security number, home address, etc., but not work-related dates like resignation date.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) gives the custodian, the requester, and the subject of certain employee-related records a statutory right to ask the AG for an advisory opinion on releasability. The opinion is non-binding but it shapes custodian behavior in practice.

The two-track framework (personnel records / evaluation records) traces to the FOIA itself: § 25-19-105(b)(12) (personnel) and § 25-19-105(c)(1) (evaluation). The Arkansas Supreme Court adopted the AG's office's definition of evaluation records in Thomas v. Hall, 2012 Ark. 66 (records created by or at the behest of the employer to evaluate the employee, detailing performance on the job). Resignation letters typically do not meet that definition.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records four-prong gate)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Cross-referenced AG opinions:

• Op. Att'y Gen. 2019-061, 2018-008 (resignation letters as personnel records)
• Op. Att'y Gen. 2015-057 (termination-letter classification: facts vs. grounds)
• Op. Att'y Gen. 2013-144 (constructive termination definition)

Source

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

Original opinion text

Opinion No. 2020-056
November 30, 2020
Mr. Stephin Booth
3701 West 12th Street
Little Rock, AR 72204
Dear Mr. Booth:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE R UTLEDGE
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the subject of the requested record,
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.
Information you have relayed to this office indicates that someone with the news
media has requested under the FOIA your resignation letter from employment with
the City of Little Rock. You state that the City's custodian of records has
determined that the requested record constitutes your personnel record and that it
should be released. You ask whether the decision to release the requested record is
consistent with the FOIA.
RESPONSE
Because I have not seen the record the custodian has determined is responsive to the
FOIA request, I cannot opine specifically about whether the record should be
disclosed or the need to redact any specific piece of information from the document.
I can opine generally that letters of resignation typically constitute personnel records
under the FOIA, and that the information you have provided indicates that the
custodian has correctly classified your resignation letter as your personnel record.
However, it is ultimately up to the custodian to properly classify the record and
apply the appropriate test for disclosure, as further discussed below.
323 CENTER STREET. SUITE 200 • LITTLE ROCK, ARKANSAS 7220 I
T ELEPHONE (501 ) 682-2007 • FAX (501) 682-8084
INTERNET W EBSITE . http://www.ag.state.ar.us/ Mr. Stephin Booth
Opinion No. 2020-056
Page 2
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.1 Because the records are held by a public entity,
they are presumed to be public records,2 although that presumption is rebuttable.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.
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found in
employees' personnel files.4 For purposes of the FOIA, these items can usually be
1 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).
2 Id.
3 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).
4 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. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-Steele & Robert
Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed.,
2017). Mr. Stephin Booth
Opinion No. 2020-056
Page 3
divided into two mutually exclusive groups: "personnel records"5 or "employee
evaluation or job performance records."6 The test for whether these two types or
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 the record the custodian has determined to be responsive
to the FOIA request, you state that the custodian has determined that the record is
your personnel record. Based on the little information provided to me, it sounds as
if the custodian's decision to classify the record as your "personnel record" is
correct. 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. 7 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. "8
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,9 has provided
5 Ark. Code Ann.§ 25-19-105(b)(l2): "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."
6 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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."
7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
8 Ark. Code Ann.§ 25-19-105(b)(l2).
9 308 Ark. 593, 826 S.W.2d 252 (1992). Mr. Stephin Booth
Opinion No. 2020-056
Page 4
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. 10
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.11 If the privacy interest is merely de minim is, 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.12
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.13 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. 14
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.15
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.16
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.17 This ordinarily precludes the custodian from
10 Watkins, et al., at 208.
11 Young, 308 Ark. at 598, 826 S.W.2d at 255.
12 Id., 826 S.W.2d at 255.
13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
16 Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.
17 See Ops. Att'y Gen. 2019-04 7, 2018-061. Mr. Stephin Booth
Opinion No. 2020-056
Page 5
considering any subjective motives or the identity of a requester when making the
determinations whether a record must be disclosed or withheld.18
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)(l3));
• 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 )(1 O));
• 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 ).
18 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 eomis 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 disc losable employee-related records. Op. Att'y Gen. 2019-
047 (and opinions cited therein). Mr. Stephin Booth
Opinion No. 2020-056
Page 6
III. Application.
This office has consistently opined that resignation letters generally constitute
"personnel records" within the meaning of the FOIA.19 Based on the information
you have provided, it appears that your resignation was entirely voluntary and that
the custodian has correctly classified your resignation letter as your personnel record
and applied the appropriate standard for determining whether the record must be
disclosed.20 Not having seen the record, however, I cannot definitively opine on its
release. That will depend upon whether the custodian properly determined that
disclosure would not constitute a clearly unwarranted invasion of personal privacy.
under the balancing test discussed above.
While I cannot definitively opine on the custodian's decisions with respect to any
specific record, the foregoing should be of guidance in addressing the particular
record at issue.
Sincerely,
-"":••==:~~;;:::, L . //?..£"'?
LESLIE RUTLEDGE
Attorney General
19 Ops. Att'y Gen. 2019-061, 2018-008 (and opinions cited therein).
20 This office has at times noted a distinction between purely voluntary resignations, as yours
appears to be, and "forced" or "coerced" resignations, which this office has defined as "a
resignation tendered in the face of ce1iain, impending termination." Op. Att'y Gen. 2013-144. In
such a case, the custodian would likely need to consider whether the resignation letter in fact
amounts to a termination letter, and whether the Jetter qualifies for the different standard for
disclosure for employee-evaluation records. See Ark. Code Ann. § 25-19-105( c )(I) (Supp. 2019).
See also Op. Att'y Gen. 2015-057 (explaining that only when a termination letter states the grounds
for the termination docs the letter qualify as an employee evaluation, but when the termination
letter merely states the fact of termination, the letter is a personnel record that must be disclosed).