When a Fayetteville Housing Authority employee objects to FOIA release of records on grounds that other employees' or private citizens' information is included, can the AG opine?

Plain-English summary

Audra Butler, an employee of the Fayetteville Housing Authority, was the subject of a FOIA request that produced personnel records the custodian planned to release with redactions. Butler asked the AG to review the records and order additional redactions. Her objections, however, were about other employees and private citizens whose information appeared in the records, and about whether certain content was "germane" or might be "prejudicial."

The AG declined to opine. The AG's review authority under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is limited. It allows the requesting party (custodian, requester, or subject of the records) to ask whether the custodian's release decision is consistent with FOIA. The "subject of the records" review path is intended to address the subject's own personnel or evaluation records, not to deputize the subject as a privacy advocate for everyone else mentioned in the records.

Specifically, the AG said:

• Concerns about other FHA employees' or private citizens' privacy are outside the scope. Each such person, if affected, would have to make their own request or pursue their own remedies.
• Objections that records are "not germane" or would be "prejudicial" are not recognized FOIA grounds for redaction. The exemption framework (personnel-records vs. evaluation records, with the Young v. Rice balancing test) doesn't include those categories.

Despite declining to issue a substantive opinion, the AG provided a summary of the general FOIA framework so Butler would understand how the analysis works.

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 the AG's review so narrow?

Section 25-19-105(c)(3)(B)(i) was created as a quick administrative check on a custodian's decision about a specific category of records (personnel or evaluation records). It is not a general-purpose FOIA enforcement mechanism. General enforcement is by criminal prosecution under § 25-19-104 (a Class C misdemeanor for negligent violation) or by citizen lawsuit in circuit court under § 25-19-107.

Can other affected people file their own AG requests?

Only if they are the subject of the records themselves. A coworker mentioned in your records is not the "subject" for AG review purposes. They would have to pursue circuit court relief if they have a claim.

What is "not germane" supposed to mean?

Butler used the term to argue that some of the content didn't directly relate to her employment and shouldn't be released. FOIA doesn't have a relevance filter. If the record is a public record, and not exempt, it is releasable as it exists.

What about the privacy of private citizens (non-employees) named in the records?

Private citizens have privacy interests, and Arkansas FOIA does provide for redaction of personal information that would identify them. But the AG opinion route is not the way to assert those interests. The custodian should redact appropriately as part of the regular FOIA response. If the custodian fails to do so, an affected person can pursue circuit court review.

Background and statutory framework

Section 25-19-105(c)(3)(B)(i) authorizes the records custodian, the requester, or the subject of certain employee-related records to ask the AG whether the custodian's release decision is consistent with FOIA. The AG opinion is advisory; it does not bind the custodian or any court.

The categories of records covered by the AG review are personnel records (under (b)(12)) and employee evaluation or job-performance records (under (c)(1)). The review focuses on whether the right exemption analysis was applied to records in those categories.

Outside those categories, the AG review path is unavailable. The opinion makes clear that:

• Privacy interests of third parties are not within the AG's review scope.
• Subjective relevance objections ("not germane," "prejudicial") are not within the FOIA framework at all.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)

Source

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

Original opinion text

Opinion No. 2021-023
April 21, 2021
Audra Butler
c/o Fayetteville Housing Authority
1 North School Avenue
Fayetteville, AR 72701

Dear Ms. Butler:

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).

Your correspondence indicates that the Fayetteville Housing Authority (FHA) has received a number of requests under the FOIA for "documents, emails, text messages, and other records" concerning numerous FHA former or present employees. You have attached several documents that the records custodian has identified as your personnel records, which have also been characterized as "releasable after redacting some personal and/or non-releasable information contained in the requested records." You request my review of the attached documents to determine whether the custodian's decision is consistent with the FOIA.

RESPONSE

The concerns you have raised regarding certain records containing information you believe should be redacted are concerns that relate to other FHA employees or to private citizens. As such, they are outside the scope of my review in response to an opinion request made pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i). Such a request must relate primarily to your own personnel or evaluation records.

Your objection to the inclusion of certain portions of the records on the grounds they are not "germane" or would somehow be "prejudicial" also falls outside the scope of my review under this FOIA provision.

Consequently, I am unable to issue an opinion in response to your request. In an effort to be helpful, however, I have summarized below the general rules that apply under FOIA when addressing personnel records.

Sincerely,

LESLIE RUTLEDGE
Attorney General