When the same person FOIAs your personnel records four times, can the public defender's office release them again, with the same redactions?

Plain-English summary

Lana M. Fraser, an investigator at the Pulaski County Public Defender's Office (PDO), faced a fourth FOIA request for her personnel file. Citing repeated invasions of her privacy, she asked the AG to review the custodian's planned release under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). The custodian had redacted certain items and intended to release the rest. Fraser objected.

AG Leslie Rutledge said the custodian's planned release was "mostly consistent" with the FOIA, but identified one missed redaction. The opinion incorporates Op. Att'y Gen. 2019-062 (issued to Fraser herself on October 11, 2019) by reference; that opinion analyzed the same kind of records under the same framework and reached the same conclusion. The 2020 opinion adds:

• Fraser's repeat-request objection ("she has been intruded upon for the fourth time") does not change the analysis. The number of FOIA requests does not factor into the Young v. Rice balancing.
• The custodian missed one item: Fraser's employee personnel number appears "passim" (throughout) in the records. Per the framework in Op. 2019-062 (text accompanying nn. 25-26), employee personnel numbers must be redacted before release. The custodian must add that redaction before disclosing.

Once the personnel-number redaction is made, the release is consistent with the FOIA.

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 isn't repeated FOIA harassment a basis to withhold? The Arkansas FOIA does not include a generalized "harassment" exemption. The number of times a record has been requested, or the requester's apparent motive, does not feature in the Young v. Rice balancing. The custodian must apply the test to the records themselves, on the merits, each time.

Why must the employee personnel number be redacted? The AG has consistently treated employee personnel numbers as items that must be redacted before release of personnel records, under the categorical-redaction list developed across many AG opinions (e.g., Ops. Att'y Gen. 2014-094 and 2007-070). The reasoning is that personnel numbers are administrative identifiers tied to individual employees and serve no FOIA-purpose related to government accountability.

Does Fraser have a remedy if the custodian fails to redact correctly? The AG opinion is advisory. If the custodian releases without the required redaction, Fraser's remedy lies in the courts; she can seek injunctive relief under the FOIA's enforcement provisions. The AG opinion strengthens her position but does not enjoin release on its own.

What did Op. 2019-062 actually decide?
That the custodian's planned release of Fraser's job application and resume (after redactions) was mostly consistent with the FOIA. The 2020 opinion incorporates that analysis. Anyone seeking the underlying framework should read Op. 2019-062, which sets out the personnel-records test in detail.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) gives the subject of personnel records a recurring right to AG review each time the records are released. Fraser had used that right twice (once in 2019, once here). The repeat-request character of the FOIA pressure on her did not change the FOIA's substantive test; the custodian still applied the same analysis to the same documents.

The opinion's incremental contribution is the spotting of a missed redaction (employee personnel number). It is a useful reminder for custodians: even where the substantive analysis tracks a prior opinion, every release requires a fresh pass through the categorical-redaction list.

Citations

Statutes:

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cross-referenced AG opinions:

• Op. Att'y Gen. 2019-062 (Fraser, October 11, 2019) (controlling framework, enclosed)
• Op. Att'y Gen. 2014-094, 2007-070 (employee personnel number must be redacted)

Source

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

Original opinion text

Opinion No. 2020-060
December 22, 2020
Lana M. Fraser, Esq.
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Pulaski County Public Defender's Office
201 South Broadway, Suite 210
Little Rock, AR 72201
Dear Ms. Fraser:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested records, 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 Pulaski County Public Defender's Office ("PDQ") has received a request under the FOIA for your personnel file. You have attached several documents that the custodian has identified as responsive to the request and that she intends to release with redactions. You object to this release on the ground that your "interest in protecting [your] privacy has been and continues to be intruded upon and that should exceed the need to disclose this information to
[the requester] for the fourth time." Accordingly, you ask whether the custodian's decision to release the records as redacted is consistent with the FOIA. RESPONSE In my opinion, the custodian's decision to release the records, as redacted, is mostly consistent with the FOIA. The request for your personnel records and your objection to the custodian's decision to release them are substantially similar to those involved in Op. Att'y Gen. 2019-062 that I issued to you on October 11, 2019. I have enclosed a copy of that opinion for your review. Although additional personnel records are applicable to this request, that does not in any way change the 323 CENTl'R STREET. SUITE 200 •LITTLE ROCK, ARKANSAS 72201 T ELEPHONE (50 I) 682-2007 • FAX (50 I) 682-8084 INTERNET W EBSITE . http://www.ag.state.ar.us/ Lana M. Fraser Attorney at Law Opinion No. 2020-060 Page 2 analysis as to whether their disclosure is consistent with the FOIA that was set out in that previous opinion. Similarly, the analysis in the enclosed opinion regarding your generalized privacy concerns in the records remains sound. I will point out, however, that while the custodian's decision to release the records as they have been redacted is mostly consistent with the FOIA, there are additional redactions the custodian should make prior to disclosure. Namely, your personnel number appears passim throughout the documents. This number must be redacted everywhere it appears for the reasons set out in the previous opinion. 1 Sincerely,
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LESLIE RUTLEDGE
Attorney General
Enclosure
1 Op. Att'y Gen. 2019-062 (text accompanying nn. 25-26). Opinion No. 2019-062 October 11, 2019 Lana M. Fraser, Investigator 1,\·.\Lti 1 1
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STATE OF ARKANSAS
ATTORNEY GENERAL
LES LIE RUTLEDGE
Pulaski County Public Defender's Office
201 South Broadway
Little Rock, AR 72201
Dear Ms. Fraser:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). This subsection authorizes the custodian, requester, or the subject of personnel or employee- evaluation 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 Pulaski County Public Defender's Office ("PDO") has received a request for your job application and resume under the FO IA. You have attached a copy of the documents at issue, as redacted by the custodian of records. You make several objections to the records' disclosure, which can be accurately distilled down to an objection based on an invasion of privacy. You ask whether the custodian's decision to release the documents as redacted is consistent with the FOIA. RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that the decision to disclose the records, as redacted, is mostly consistent with the FOIA. The custodian must, however, make additional redactions to the records before they can be released. 323 CFNHll S 11u 11. StJITI 200 · l.11111 Rrn:K. /\llKANSAS 7220 I f'il ll'l IONI 1501) 682-2007 · IAX (501) (>82-808,I
/\ ll KAN St\S/(j .liO\/ Lana M. Fraser
Opinion No. 2019-062
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 PDO, 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,2 although that presumption is rebuttable.3 This office has consistently maintained that job applications kept by a public entity qualify as ''public records"4 and must be disclosed unless some specific exception provides otherwise. Accordingly, 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.5 For purposes of the FOIA, these items can usually 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 which 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. 2017). 3 See Pulaski Cty. v. Ark. Democrat-Gazelle, 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). '1 See Ops. Att'y Gen. 2016-075, 2015-130, 87-070 (stating that applications are "'a record of the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate."). 5 This office and the leading commentators on the FO IA have observed that personnel tiles usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life Lana M. Fraser Opinion No. 2019-062 Page 3 be divided into two mutually exclusive groups: "personnel records''6 or "employee evaluation or job performance records.''7 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 is apparent from the face of the records that they would properly be classified as a public employee's personnel record. Because the relevant exception in this instance appears to be the one for personnel records, l will limit my discussion to records of that type. The FOIA does not define the term "personnel records.'' But this office has consistently opined that "personnel records" are all records other than employee- evaluation and job-performance records that pertain to individual employccs.8 And this office and the leading commentators on the FOIA have repeatedly observed that job applications of public employees, and accompanying resumes, generally meet this definition.9 Accordingly, a job application generally must be insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; ce1iificates 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- Steelc & Robeti Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION Acr 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 chapkr ....
[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)(I): "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 term inatc the employee and if there is a compelling public interest in their disclosure.'' 8 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, el al., at 202. 9 See Ops. Att'y Gen. 2017-121, 2010-044, 2005-004; Watkins, et al., at 202. Lana M. Fraser Opinion No. 2019-062 Page 4 released unless doing so constitutes a clearly unwarranted invasion of personal
• IO privacy.
While the FOIA does not define the phrase "clearly unwarranted invasion or personal privacy," the Arkansas Supreme Court, in Young v. Rice, 11 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. This balancing takes place with the scale tipped in favor of disclosure. 12 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.13 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 disclosurc.14 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 intcrcsts.15 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.16 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.17 Additionally, a requester's identity or motive for making a request under 10 Ark. Code Ann.§ 25-19-10S(b)(l2). 11 308 Ark. 593, 826 S.W.2d 252 (1992). 12 Watkins, et al., at 208. 13 Young, 308 Ark. at 598, 826 S.W.2d at 255. 1·1 Id., 826 S.W.2d at 255. 15 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 16 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. 17 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I. Lana M. Fraser Opinion No. 2019-062 Page 5 the FOIA is generally irrelevant as to whether a non-exempt public record must be released.18 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.19 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 withhcld.20 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);
  18 Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107. 19 See Ops. Att'y Gen. 2019-04 7 and 2018-061. 20 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 couris 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). Lana M. Fraser Opinion No. 2019-062 Page 6
• 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.
  It is my understanding that the documents you submitted for my review are your application and resume for a position with Pulaski County. Your objections to the release of these records can be fairly summarized as your interest in personal privacy outweighing the public's interest in disclosure. In my opinion, your objections are not legally sufficient reasons to withhold the records. Personnel records of public employees are subject to disclosure under the FOIA except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."21 Regarding job applications, this office has repeatedly indicated that the release of such records rarely rises to such a level.22 Applying the balancing test for personnel records discussed above would not, in my opinion, tip the balance in favor of withholding the requested documents. Thus, it is my opinion that the custodian's decision to release the records is consistent with the FOIA for the most part. While the custodian has mostly complied with the FOIA in redacting certain personal information that cannot be released, I have found at least two additional redactions-and possibly others-that must be made before the records may be released. On the first page of your application and on the front of your resume, the ZIP Code for your home address must be redacted.23 It has long been the opinion of this office that the term "home addresses" in the exemption for personal contact information of public employees encompasses all of the component parts of a home address-a street address, city, county, and ZIP Code. 24 21 Ark. Code Ann. § 25-19-105(b )( 12) (emphasis added). ,)'ee supra n.6. 22 See Ops. Att'y Gen. 2014-123, 20 I 0-070. 23 Ark. Code Ann. § 25-19-105(b)( 13). 24 Ops. Att'y Gen. 2019-004, 2011-114, 2008-138. Lana M. Fraser Opinion No. 2019-062 Page 7 Also, at the bottom of each record, there is an unexplained and unidentified number next to your name. If that number is your personnel number, it must be redacted everywhere it appears on the records. Because personnel numbers presumably aid in providing access to computerized data, 25 they must be redacted because records containing "personal identification numbers" used for computcr- sccurity functions are specifically exempt from disclosure under the FOIA.26 Sincerely,
  -"'';:-~~;::>~ L. / #17
  LESLIE RUTLEDGE
  Attorney General
  25 Op. Att'y Gen. 2018-064.
  26 !\rk. Code Ann. § 25-19-105(b )(I I).