Did the Arkansas AG approve Little Rock’s plan to release Alva Archer’s employee records?

Plain-English summary

Alva Archer asked the Attorney General to review Little Rock’s proposed release of records under a request for picture identification, personnel records, and disciplinary records concerning employees who had resigned in the preceding five years. The city’s notice said the information was part of Alva’s personnel record and was releasable after redacting sensitive personal details. Alva objected, including concern about the requester’s planned use of the information.

The AG did not make a new record-specific determination. She said this request was virtually identical to one addressed in Opinion 2020-063, enclosed that opinion, and referred Alva to its analysis and conclusions. The enclosed opinion had not seen the responsive records. It said the custodian first had to classify each record as a personnel record or an employee-evaluation record, then apply the appropriate release test. It had no information supporting the custodian’s classification of the records as a whole. It said release of a photograph would likely be consistent with FOIA, but it did not approve release of every personnel or disciplinary record.

The enclosed opinion also said the requester’s subjective motive and the records subject’s subjective objection could not decide the personnel-record privacy balance. It noted that a judicial remedy might be available on facts an AG opinion could not resolve. Neither opinion stated that all records about Alva had to be released.

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

Did the AG approve the city’s planned release of all records? No. The enclosed opinion expressly said it had not reviewed the records or received information about their classification. It left those decisions to the custodian.

What did the AG say about the employee photograph?
Opinion 2020-063 said releasing a photograph of a public employee would likely be consistent with FOIA. It did not make an unqualified release ruling on the other records.

How were disciplinary records to be assessed?
The custodian had to decide whether each document was a personnel record or an employee-evaluation record. The latter could be released only if all four statutory conditions were met; a voluntary resignation ordinarily did not satisfy the suspension-or-termination condition.

Did the subject’s objection settle the privacy issue? No. The enclosed opinion said a subjective objection could not control the objective personnel-record test, but it also said a court might be able to hear evidence and grant an appropriate remedy.

Background and statutory framework

The short opinion invoked Ark. Code Ann. § 25-19-105(c)(3)(B)(i) for review of a custodian’s employee-record decision and enclosed Opinion 2020-063. That earlier opinion distinguished personnel-record privacy balancing from the four-part employee-evaluation release test, stressed the custodian’s responsibility to classify the actual records, and declined a record-specific release decision because none had been provided.

Source

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

Original opinion text

STATE OF ARKANSAS
THE AnonNEY GENERAL
LESLIE R UTLEDGE
Opinion No. 2021-002
January 7, 2021
Alva Archer
c/o City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Ms. Archer:
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 raise several objections to the release of the records including not knowing how the requester plans to use the information, and you have asked for my opinion whether the custodian's decision to the release the records is consistent with the FOIA. RESPONSE Your request for my opm10n regarding the custodian's decisions as to the classification and disclosure of your employment-related records, including your objections to those decisions, is virtually identical to the request I responded to in Op. Att'y Gen. 2020-063, published on Tuesday, January 5, 2021. The legal 323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARK/\NS/\S 7220 I T ELEPHONE (50 I) 682-2007 • F /\X (50 I) 682-8084 INTERNET WEBSITE . http://www.ag.state.ar.us/ Alva Archer c/o FOIA Coordinator Opinion No. 2021-002 Page 2 analysis and its application to your request consequently are the same as in that . . . prev10us opm10n. Therefore, I will not repeat the opinion herein, but instead refer you to the enclosed Opinion 2020-063 for the analysis and conclusions. Sincerely,
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LESLIE RUTLEDGE
Attorney General
Enclosure STATE OF ARKANSAS
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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 FOlA 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" alter 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 or any specific document or the need
to redact any specific piece of information from an otherwise releasable document.
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clo 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 bdow, 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 ii' all three or the
following elements arc met. First, the f'OIA 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 arc 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 nr
computer-based information, or data compilations in any medium, required by law to be kept or
otherwise kept, and that constitute a record or the performance or lack of performance or oflicial
functions ... carried out by a public official or employee .... " Ark. Code Ann.§ 25-19-103(7)(A)
(Supp. 2019).
1 See Pulaski Cly. v. Ark Democrat-Gaze/le, Inc., 3 70 Ark. 43 5, 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.
/\tt'y Gen. 2005-095). Karen Withers
c/o City of Little Rock HR Department
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 docs not define. But this office has consistently opined
that "personnel records" arc all records other than ·'employee evaluation or job-
performance records" that pertain to individual employees.7 Whether a particular
record meets this delinition is a question of fact that can only he definitively
determined by reviewing the record itself. Ir a document meets this definition, then
'1 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
Steinbueh, Tm: ARKANSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed.,
2017).
5 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 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)( I): "Notwithstanding subdivision (b)( 12) 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)(l2).
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).
1•1 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 Department
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 or the
items that must not be disclosed include:
• Personal contact information or 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. J\tt'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 );
• J\ny information identifying certain law enforcement officers currently
working undercover (Ark. Code Ann. § 25-19-105(b )(IO));
• Driver's license number and photocopy of driver's license (Ops. J\tt'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. 2019-047, 2018-061.
18 See Ops. Att'y Gen. 2018-087, 2018-061; see also Op. Att'y Gen. 2014-09..J. (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 ofotherwise disclosable employee-related records. Op. Att 'y Gen. 2019-
047 (and opinions cited therein). Karen Withers
c/o City of Little Rock 1 IR 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 docs 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:
I. 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 intcrest).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. /\tt'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 i\rk. 66, at 9-10, 399 S.W.3d at 392-93.
   22 Ark. Code Ann.§ 25-19-105(c)( I); Op. /\tt'y Gen. 2008-065. Karen Withers
   c/o City of Little Rock HR Department
   Opinion No. 2020-063
   Page 7
   [IJt 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 speci fie 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).
   2'1 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 J 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 f<.w disciplinary records
   of employees who resigned, it must be emphasized that if any or the responsive
   records arc 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 or
   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 or 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 certain, impending termination could be
   deemed to be forced or coerced-in other words, a ''constructive termination'' for the purposes or
   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 cou1ts 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).
   10 Supra n.18. Karen W ithcrs
   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,
   .cc::::::::::c:c~::>~ , . /./~17
   LESLIE RUTLEDGE
   Attorney General
   11 See Ops. Att'y Gen. 2018-087, 2018-061.