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,
~:~~:~- L. /./~1.-p
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
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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.
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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).