Could a Fayetteville Housing Authority employee obtain AG review of objections about other people’s privacy and allegedly prejudicial content?

Plain-English summary

Audra Butler asked the AG to review a Fayetteville Housing Authority custodian's plan to release records identified as her personnel records after redactions. The broader FOIA requests concerned documents, emails, text messages, and other records about several current and former employees.

Butler's proposed additional redactions concerned information about other employees and private citizens. She also objected that parts of the records were not “germane” or could be “prejudicial.” The AG said these objections fell outside her review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which had to relate primarily to Butler's own personnel or evaluation records. She could not issue an opinion on the custodian's decision in response to this request.

The letter then summarized general rules for handling personnel and evaluation records. It did not decide the merits of Butler's proposed redactions, classify the attached documents, or rule that lack of germaneness or possible prejudice can never matter in another context.

Currency note

This opinion was issued in 2021. Verify current Arkansas law before relying on its procedures or disclosure tests.

Common questions

Did the AG approve release of Butler's records?
No. The AG said she could not issue an opinion on this request because Butler's concerns fell outside the scope of this review provision.

Did the AG decide whether other people's information must be redacted? No. She described Butler's concerns about other employees and private citizens as outside the scope of her review in response to Butler's request.

Did the AG reject the objections about “germaneness” or prejudice on their merits? No. She said they also fell outside the scope of this particular AG review. She did not determine whether they could support redaction under a different analysis.

What guidance did the AG provide despite declining review? She summarized the general FOIA disclosure steps and the distinct tests for personnel records and employee-evaluation records. A custodian must classify a record and then apply the corresponding test.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allows review of certain employee-related release decisions at the request of the custodian, requester, or subject. The AG said a request made by the subject must relate primarily to that person's own personnel or evaluation records. Because Butler's stated concerns did not fit that scope, the AG gave general guidance without reaching a record-specific conclusion.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(c)(1)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTOllNEY G EN El~AL
LESLIE R UTLEDGE

Opinion No. 2021-023

April21,2021

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). 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 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

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Audra Butler
c/o Fayetteville Housing Authority
Opinion No. 2021-023
Page 2

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.

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. 1 Third, no exceptions allow the document to be withheld.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 2 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 3 or "employee

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). Moreover, records held by a public entity are presumed to be "public records," although that presumption is rebuttable. 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).

2
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; ce1tificates 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 Acr 205-06 (Arkansas Law Press, 6th ed., 2017). 3 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 ....

Audra Butler
c/o Fayetteville Housing Authority
Opinion No. 2021-023
Page 3

evaluation or job performance records." 4 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, the custodian classified the records at issue as your personnel records, a decision that does not appear to be in dispute. I will, therefore, limit my discussion to records of that type.

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. 5 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. " 6

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice,7 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

[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

4
Ark. Code Ann. § 25-19-105(c)(l): "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 ifthere is a compelling public interest in their disclosure."

5
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
6
Ark. Code Ann. § 25-19-105(b )(12).

7
308 Ark. 593, 826 S.W.2d 252 (1992).

Audra Butler
c/o Fayetteville Housing Authority
Opinion No. 2021-023
Page 4

the individual's interest in keeping them private. The balancing takes place with the scale tipped in favor of disclosure. 8

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. 9 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. 10 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. 11 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. 12

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 13 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. 14 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. 15 This ordinarily precludes the

8
Watkins, et al., at 208.

9
Young, 308 Ark. at 598, 826 S.W.2d at 255.

10
Id., 826 S.W.2d at 255.

11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 ( 1998).

12
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

13
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I.

14
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

15
See Ops. Att'y Gen. 2019-047, 2018-061.

Audra Butler
c/o Fayetteville Housing Authority
Opinion No. 2021-023
Page 5

custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld. 16

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-l 9-105(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 )(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);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-3 85);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194 ).

16
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 cou1is 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).

Audra Butler
c/o Fayetteville Housing Authority
Opinion No. 2021-023
Page 6

I trust this general overview of the determinations a custodian must make regarding personnel records and the balancing test that must be applied to determine whether a personnel record should be withheld because disclosure "would constitute a clearly unwarranted invasion of [the employee's] personal privacy" has been helpful to you.

Sincerely,

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LESLIE RUTLEDGE
Attorney General