Can a Little Rock city employee block release of her personnel and disciplinary records by objecting under the Arkansas FOIA?

Plain-English summary

Karen Withers, a former employee or current employee of the City of Little Rock, received notice that the City had received a FOIA request for "picture identification, personnel and disciplinary records for city personnel that resigned in the last five (5) years." The custodian determined the records were releasable subject to redaction of sensitive personal information (address, date of birth, telephone number, social security number). Withers objected, citing her concerns about how the requester might use the information. Acting under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), she asked the AG whether the custodian's plan was consistent with the FOIA.

Then-Attorney General Leslie Rutledge declined to opine on releasability of any specific document (the office did not have the records in front of it) but laid out the legal framework the custodian had to apply, and addressed Withers's objections directly. The bottom line: Withers's stated objections were not legally sufficient grounds to withhold the records. A subject's subjective preference does not factor into the FOIA analysis, which is objective.

The framework the opinion set out became the template for a wave of nearly identical FOIA review requests filed in early January 2021 by other current and former Little Rock employees (Op. 2021-001 [Mullins], 2021-002 [Archer], and indirectly the LRPD officer line that began with Op. 2021-003 [Silas]). Op. 2020-063 is the foundational analysis those later opinions cross-reference.

Currency note

This opinion was issued in 2021. 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

Can a city employee block release of her own records by objecting? Not on the basis of objections like the ones Withers raised. The opinion identified that under the Arkansas FOIA as it stood in 2021, the subject's subjective view did not factor into the analysis, because the test was objective. The custodian had to weigh the public's interest in disclosure against the privacy interest under Young v. Rice, and the requester's identity or motive was generally irrelevant.

What was the Young v. Rice balancing test?
A two-step test the Arkansas Supreme Court used (and as the opinion described, with the scale tipped in favor of disclosure). First, did the information rise above a "de minimis" privacy interest. Second, if yes, did the public's interest in disclosure outweigh that privacy interest. The burden was on the person resisting disclosure.

Why did the AG distinguish "personnel records" from "employee evaluation records"? The two categories had different release tests under the FOIA. Personnel records went through the Young v. Rice balancing. Evaluation records (records created by the employer to evaluate an employee's job performance) had a much stricter four-prong gate: suspension or termination, finality, basis, and compelling public interest. Resignation letters were generally personnel records, not evaluation records.

Did resigning protect the records?
The opinion explained that voluntary resignation generally did not meet the "level of discipline" prong needed to release evaluation records, so evaluation records of an employee who simply resigned would typically stay closed. But personnel records (which include disciplinary action records that are not part of an evaluation file) and resignation letters were generally releasable through the Young v. Rice test.

Did the requester's possible misuse of the records matter? No. The opinion noted that the FOIA does not include a generalized "harassment" exemption. The requester's motive could not be the basis for withholding records, although it could in some cases be considered as evidence of an objective public interest.

What were the categorical redactions?
Even where a record was releasable as a whole, the opinion listed specific items that had to come out: personal contact information of public employees (Ark. Code Ann. § 25-19-105(b)(13)); employee personnel number; marital status and dependents; date of birth; social security number; medical information; identifying info for officers currently working undercover (§ 25-19-105(b)(10)); driver's license number; insurance coverage; tax/withholding information; payroll deductions; and banking information.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) gave the custodian, the requester, and the subject of certain employee-related records the ability to seek a non-binding opinion from the Attorney General before the records were released. The opinions are advisory, but they shape custodian decisions in practice and frame the analysis if litigation follows.

The opinion classified records into two buckets, drawing on prior AG opinions and on the leading commentary by Watkins, Peltz-Steele, and Steinbuch (THE ARKANSAS FREEDOM OF INFORMATION ACT, 6th ed. 2017):

1. Personnel records under § 25-19-105(b)(12). All employee-related records other than evaluation records. Released subject to the Young v. Rice balancing.
2. Employee evaluation or job performance records under § 25-19-105(c)(1). Records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance on the job, per the Arkansas Supreme Court's adoption of this office's view in Thomas v. Hall, 2012 Ark. 66. Cannot be released unless suspension or termination, final administrative resolution, the records formed the basis of the discipline decision, and compelling public interest.

For the photograph that was part of the request, the opinion noted that records depicting public employees were generally subject to disclosure under the personnel-records test, so the City's plan to release the photograph was likely consistent with the FOIA.

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 employees)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job-performance exception, four-prong test)
• 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) (privacy/public-interest balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden of proof on person resisting disclosure)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records)

Cross-referenced AG opinions (a sample):

• Op. Att'y Gen. 2015-072, 99-147 (definition of "personnel records")
• Op. Att'y Gen. 2018-039 (resignation does not equate to suspension or termination)
• Op. Att'y Gen. 2014-094 (requester's subjective motive not basis for decision)
• Op. Att'y Gen. 2019-047 (no generalized harassment exemption)
• Op. Att'y Gen. 2008-065 (compelling-public-interest factors)

Source

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

Original opinion text

STATE OF ARKANSAS
THE A TTOl{NEY GENERAL
LESLIE R UTLEDGE
Opinion No. 2020-063
January 5, 2021
Karen Withers
c/o City of Little Rock HR Department
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Ms. Withers:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records request, 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 includes the notice you received from the City of Little Rock stating that the City has received a request under the FOIA for "picture identification, personnel and disciplinary records for city personnel that resigned in the last five (5) years." The City's custodian of records has determined that "this information is part of your personnel record and is releasable" after redacting "sensitive personal information such as address, date of birth, telephone number or social security number." You object to the release of the records based on the requester's use of information in the past, and you have asked for my opinion whether the custodian's decision to the release the records is consistent with the FOIA. RESPONSE Because I have not seen any records that would be responsive to the instant FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. 32) C ENTER STREET SUITE 200 •LITTLE ROCK, ARKANSAS 72201 T ELEPHONE (501) 682-2007 • FAX (501) 682-8084 INTERNET W EBSITE . http://www.ag.state.ar.us/ Karen Withers c/o City of Little Rock HR Department Opinion No. 2020-063 Page 2 I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "employee evaluation or job performance" records. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. This is the responsibility of the custodian in the first instance. 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, 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 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). 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). Karen Withers c/o City of Little Rock HR Depa1iment Opinion No. 2020-063 Page 3 employees' personnel files.4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records"5 or "employee evaluation or job performance records."6 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. a. Personnel-records exception. The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. But this office has consistently opined that "personnel records" are 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 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 ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 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. Karen Withers c/o City of Little Rock HR Department Opinion No. 2020-063 Page 4 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 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 considerations the custodian must take into account. 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 minim is privacy interest. 11 If the privacy interest is merely de minimis (that is, insignificant or trifling), then the public's interest in disclosure easily outweighs the privacy interest. Second, if the information gives 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 8 Ark. Code Ann. § 25-19-105(b )( 12). 9 308 Ark. 593, 826 S.W.2d 252 (1992). 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. Karen Withers c/o City of Little Rock HR Depa1iment Opinion No. 2020-063 Page 5 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 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 of the items that must not be disclosed 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)(l0));
• Driver's license number and photocopy of driver's license (Ops. Att'y Gen. 2017-125, 2013-090); 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. 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 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 a previously unseen objective public interest. 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). Karen Withers c/o City of Little Rock HR Department Opinion No. 2020-063 Page 6
• 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).
b. Employee-evaluation exception.
The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define.19 But the Arkansas Supreme Court has adopted this office's view that the term refers to any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job.20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.21 If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).22
   As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines: 19 I will refer to this group of records as "employee-evaluation records." 20 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055. 21 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. 22 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. Karen Withers c/o City of Little Rock HR Depai1ment Opinion No. 2020-063 Page 7
   [I]t seems that the following factors should be considered in determining whether a compelling public interest is present: ( 1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement. 23 These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, 24 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/ employer relationship.25 III. Application. When dealing with employment-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the two kinds of employment records discussed above; and (2) if so, whether under the specific circumstances, the FOIA requires the employment records be released based on the applicable test for disclosure discussed above. As I understand it, the custodian believes the records are your personnel records. I am unaware, however, of the basis for this decision. I have no information regarding the custodian's classification of the records. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. 23 Watkins, et al., at 238-39 (footnotes omitted). 24 Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue"). 25 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223. Karen Withers c/o City of Little Rock HR Department Opinion No. 2020-063 Page 8 With respect to your photograph, this office has consistently opined that records depicting public employees ordinarily are subject to disclosure under the test for personnel records.26 The custodian's decision to release your photograph, therefore. would likely be consistent with the FOIA. However, because the requester in this instance has asked for disciplinary records of employees who resigned, it must be emphasized that if any of the responsive records are in fact properly classified as your employee-evaluation records based on the definition set out above, then those records cannot be released unless all four prongs of the test for the disclosure of employee-evaluation records listed above are met.27 And an employee's resignation ordinarily will not meet the "level of discipline" prong of the test for an employee-evaluation record's disclosure.28 On the other hand, resignation letters generally constitute "personnel records" within the meaning of the FOIA.29 Any such letter would, therefore, be subject to release except to the extent disclosure would constitute a clearly unwarranted invasion of personal privacy, under the balancing test discussed above. Finally, the objections you have raised are not legally sufficient reasons to withhold the records. Additionally, as noted above, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released.30 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 26 See Op. Att'y Gen. 2019-009 (and opinions cited therein). 27 Supra text accompanying n.22. 28 This office has on numerous occasions stated that "a voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination." See Op. Att'y Gen. 2018- 039 and opinions cited therein. On the other hand, this office has opined that, under certain circumstances, a resignation tendered in the face of a ce11ain, impending termination could be deemed to be forced or coerced-in other words, a "constructive termination" for the purposes of the FOIA. Op. Att'y Gen. 2011-078. Accord Ops. Att'y Gen. 2014-103, 2013-016, 2011-078, 2008-044, 2007-322; Watkins, et al., at 231. To date, neither of Arkansas's appellate cou11s has addressed the issue of "constructive termination" with respect to the release of employee-evaluation records under the FOIA. 29 Ops. Att'y Gen. 2020-056, 2019-061, 2018-008 (and opinions cited therein). 30 Supra n.18. Karen Withers c/o City of Little Rock HR Department Opinion No. 2020-063 Page 9 for the general public.31 The custodian's analysis cannot be based on a requester's subjective motive for wanting the record or the subject's subjective objection to its disclosure. Some judicial remedy may be available to you, but only a court has the authority to hear such evidence and fashion an appropriate remedy. Sincerely,
   .=:~- '. /./~1..p
   LESLIE RUTLEDGE
   Attorney General
   31 See Ops. Att'y Gen. 2018-087, 2018-061.