Did Little Rock have to release a former employee’s resignation letter under Arkansas FOIA?

Plain-English summary

A news-media requester sought Stephin Booth’s resignation letter from Little Rock. The custodian classified it as a personnel record and planned to release it. Booth asked the Attorney General whether that decision complied with Arkansas FOIA.

The AG had not seen the letter. She said resignation letters generally qualified as personnel records and that the information supplied made Booth’s resignation appear voluntary, so the custodian’s classification appeared correct. She could not definitively decide whether the letter should be released. That depended on whether disclosure would be a clearly unwarranted invasion of personal privacy under the personnel-record balancing test.

Footnote 20 gave an important qualification. A resignation tendered in the face of certain, impending termination might require the custodian to consider whether the document amounted to a termination letter and whether the employee-evaluation standard applied. The opinion did not find that Booth’s resignation was forced.

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

Did the AG order Little Rock to release Booth’s letter? No. She had not seen it and expressly declined to decide release. The custodian had to apply the privacy test to the letter itself.

How did the AG classify the letter?
She said resignation letters generally constituted personnel records and that Booth’s apparently voluntary resignation appeared correctly classified that way.

Could a forced resignation change the classification?
Possibly. Footnote 20 said a resignation in the face of certain, impending termination could require consideration of whether the letter was really a termination letter and whether a different disclosure standard applied.

What privacy question remained?
The custodian had to determine whether releasing this particular personnel record would constitute a clearly unwarranted invasion of personal privacy under the balance described in Young v. Rice.

Background and statutory framework

Ark. Code Ann. § 25-19-105(b)(12) protected personnel records to the extent disclosure would be a clearly unwarranted invasion of personal privacy. The AG said the custodian’s apparent classification of the voluntary resignation letter was correct, then left the document-specific privacy determination open because she had not reviewed the letter.

Citations

• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(c)(1)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Ops. Att’y Gen. 2019-061, 2018-008 (footnote 19)
• Op. Att’y Gen. 2013-144 (footnote 20)

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).