If someone FOIAs Little Rock for the personnel files of every recent hire, what gets handed over and what gets redacted?

Plain-English summary

A FOIA requester asked the City of Little Rock for "personnel files for all city employees hired on or after 6/23/2020." The custodian decided that the personnel files were generally subject to release, but with two key carveouts. First, no "sensitive personal information such as address, date of birth, telephone number or social security information" would come out. Second, evaluations would not come out unless they formed the basis of a suspension or termination that had reached final administrative resolution. Tina Searan-Thayil, a subject of the records, asked the AG to review.

Then-Attorney General Leslie Rutledge concluded that the custodian's decision was generally consistent with the Arkansas FOIA. Personnel records held by a public entity are presumed to be public records under § 25-19-105(b)(12) and can be released subject to redactions for personal contact information (§ 25-19-105(b)(13)) and other categorical items. Date of birth and Social Security number redactions are well-established. Withholding evaluation records absent the four-prong test in § 25-19-105(c)(1) (suspension/termination, finality, basis, compelling public interest) is the textbook treatment.

The opinion also reminded the requester that her disagreement with the request, in itself, is not a legal basis to withhold otherwise releasable records. The FOIA opens public records "to inspection and copying by any citizen of the State of Arkansas," and the requester's identity or motive is generally irrelevant.

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

Why is date of birth always redacted?
Per Op. Att'y Gen. 2007-064, the AG has long treated public-employee dates of birth as redactable from otherwise releasable personnel records. The privacy concern is the link between DOB and identity-theft risk; the public-interest gain from knowing an employee's birthday is essentially zero.

Can an evaluation record ever be released without a final suspension or termination?
Not under the four-prong test. All four elements must be met: discipline at the suspension or termination level, final administrative resolution of that proceeding, the records were a basis for the decision, and a compelling public interest in disclosure. If any prong fails, the record stays sealed.

The custodian's memo said the city would withhold evaluations "unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." Is that the whole test?
No. The opinion noted that as long as the other two prongs (basis and compelling public interest) are also met, the decision is consistent with the FOIA. The custodian's shorthand omitted the compelling-interest analysis, but that does not invalidate the overall approach so long as the custodian applies the full test on a case-by-case basis.

Does the requester's disagreement matter?
Not directly. The opinion reaffirmed that "your disagreement as to the request is not a legally sufficient reason to withhold otherwise releasable records." The custodian's job is to apply the FOIA's tests objectively.

What does "general public interest in workings of government" mean in practice?
The Young v. Rice test asks whether the records, as an objective matter, shed light on government operations. Job titles, salaries, hire dates, and shift assignments do. A new-hire's home address does not, which is why the categorical redaction at § 25-19-105(b)(13) sits on top of the balancing test.

Background and statutory framework

The opinion applied the FOIA's three-element disclosure test (covered entity, public record, no exception) and the standard two-track classification of employee records (personnel under § 25-19-105(b)(12) or evaluation under § 25-19-105(c)(1)). For the personnel-records track, the Young v. Rice balancing test asks first whether the privacy interest is more than de minimis, and second, if so, whether it outweighs the public's interest. The scale starts tipped toward disclosure.

Categorical redactions stack on top of the balancing test. Personal contact information (home address, personal phone, personal email under § 25-19-105(b)(13)), Social Security numbers, dates of birth, employee personnel numbers (per Op. Att'y Gen. 2014-094), insurance coverage details, banking information, tax withholding, and the rest come out of any disclosable record before it leaves the file room. The opinion's longer list mirrors the same redaction enumeration that has appeared across Arkansas AG FOIA opinions for years.

For the evaluation-records track, the four-prong gate (suspension/termination, finality, basis, compelling public interest) is unforgiving by design. The treatise's three-factor test for "compelling public interest" (nature of the infraction, existence of a public controversy, employee's position) handles the most slippery prong.

Citations

State statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (public record definition)
• Ark. Code Ann. § 25-19-105(a)(1)(A) (general right of inspection)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identifying information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT (Arkansas Law Press, 6th ed., 2017)

Prior AG opinions:

• Op. Att'y Gen. 2019-036, 2019-047
• Op. Att'y Gen. 2018-061, 2018-087, 2018-125
• Op. Att'y Gen. 2017-125
• Op. Att'y Gen. 2016-055
• Op. Att'y Gen. 2015-072
• Op. Att'y Gen. 2014-094
• Op. Att'y Gen. 2013-090
• Op. Att'y Gen. 2012-014
• Op. Att'y Gen. 2011-107
• Op. Att'y Gen. 2008-065
• Op. Att'y Gen. 2007-064, 2007-070, 2007-225
• Op. Att'y Gen. 2006-035, 2006-038, 2006-176
• Op. Att'y Gen. 2005-030, 2005-095, 2005-194
• Op. Att'y Gen. 2004-167, 2004-260
• Op. Att'y Gen. 2003-073, 2003-153, 2003-336, 2003-385
• Op. Att'y Gen. 2001-022, 2001-080, 2001-112
• Op. Att'y Gen. 99-147
• Op. Att'y Gen. 98-001, 98-006, 98-126
• Op. Att'y Gen. 97-222, 97-368
• Op. Att'y Gen. 96-168
• Op. Att'y Gen. 95-351
• Op. Att'y Gen. 94-198, 94-306
• Op. Att'y Gen. 93-055

Source

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

Original opinion text

Opinion No. 2021-021
March 30, 2021
Tina Searan-Thayil
c/o FOIA Coordinator
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Ms. Searan-Thayil:
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 City of Little Rock ("the City") has received a request under the FOIA for "personnel files for all city employees hired on or after 6/23/2020." The records custodian has notified you of the request and of the City's determination that information that is part of your personnel record is subject to release. The custodian has further determined that "no sensitive personal information such as address, date of birth, telephone number or social security information is releasable," and that "evaluations are not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." You state that you "do not agree to [the instant] request" and you seek my opinion.

RESPONSE
My duty under section 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. Because I have not seen any records the City has determined to 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. 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, 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, although that presumption is rebuttable. Accordingly, given that I have no information to suggest that the presumption can be rebutted, the analysis proceeds to the third element, that is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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. Whether a particular record meets this definition is a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.

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 minimis privacy interest. 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 disclosure. 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. 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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 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. 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. 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.

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)(13));
• 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)(10));
• Driver's license number and photocopy of driver's license (Ops. Att'y Gen. 2017-125, 2013-090);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

b. Employee-evaluation exception.
The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

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:
[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.

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, 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.

III. Application.
When dealing with employee-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the kind 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. I have no information regarding the custodian's classification of any particular records at issue concerning you. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.

I will note that the custodian has determined that any personal information, such as your home address, personal telephone number, Social Security number, and the like, would be redacted from any disclosable personnel records. That decision is, in my opinion, consistent with the FOIA. Furthermore, the custodian stated that any employee-evaluation records would not be disclosed "unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." As long as the other two prongs of the test set out above are also met, that decision too would be consistent with the FOIA.

Finally, your disagreement as to the request is not a legally sufficient reason to withhold otherwise releasable records. With some exceptions, the FOIA makes public records "open to inspection and copying by any citizen of the State of Arkansas." Additionally, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. 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. The custodian's analysis cannot be based on a requester's subjective motive for wanting the record.

Sincerely,
LESLIE RUTLEDGE
Attorney General