Can a Fayetteville Housing Authority employee object to FOIA release of her own daily notes about residents on the basis that the residents' privacy will be invaded?

Plain-English summary

Tara West, an employee of the Fayetteville Housing Authority, was the subject of a FOIA request that produced what she described as her "notes regarding events from [her] daily interactions with residents." The custodian classified them as her personnel records and decided to release them with redactions. West objected, primarily on the grounds that some of the redactions concerned privacy interests of FHA residents (private citizens, not public employees).

The AG's response was largely limited. Most of West's objections were "beyond the scope of an opinion from this office under the FOIA." The AG's review authority under § 25-19-105(c)(3)(B)(i) is narrow: it addresses whether the custodian's decision about the requesting employee's own personnel or evaluation records is consistent with FOIA. Concerns about other parties' privacy don't fit.

For the part of the records that did fall within the AG's scope (West's own personnel records), the AG could not say the custodian was incorrect in deciding that the contested information should not be redacted. Within the scope of review, the records were releasable.

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 housing authority employee's records public at all?

The housing authority is a public entity. Records of its operations, including notes by staff about how their work was performed, are public records under Arkansas FOIA's broad definition. The records pertain to the performance of official functions.

What about HUD or federal privacy rules?

Federal privacy rules (Privacy Act, HUD-specific regulations) may apply to certain housing authority records and could affect what gets released. The AG didn't address federal preemption in this opinion. Custodians at housing authorities should consult with counsel about federal overlay before releasing.

Could a resident sue if their information was released?

Possibly, depending on the type of information and the basis for release. Defamation, invasion of privacy, or specific federal claims might be available. But those are private causes of action between the resident and whoever published the information, not FOIA exemptions the custodian could invoke.

What kinds of redactions did the custodian make?

The opinion doesn't list them specifically. The standard required redactions list includes personal contact information, dates of birth, social security numbers, medical information, banking information, and similar items. For private citizens (vs. public employees), the redaction list typically extends further to include any identifying information that would expose them to recognition.

Background and statutory framework

Section 25-19-105(c)(3)(B)(i) authorizes a narrow AG review for personnel and evaluation records. Subjects of those records, requesters, and custodians can ask whether the custodian's decision is consistent with FOIA.

The scope of that review is the requesting party's own personnel or evaluation records. Privacy concerns of third parties are not within scope. This opinion (and Op. 2021-023, issued the same day for another FHA employee) make this scope limit explicit.

For the personnel records that are within scope, the Young v. Rice balancing test applies. Greater than de minimis privacy interest is weighed against public interest, with the scale tipped toward disclosure. The AG concluded that the custodian's redaction decisions for West's records that were within scope were not inconsistent with FOIA.

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)
• Young v. Rice, 308 Ark. 593 (1992)

Source

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

Original opinion text

Opinion No. 2021-024
April 21, 2021
Tara West
Fayetteville Housing Authority
1 N. School Avenue
Fayetteville, AR 72701

Dear Ms. West:

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 multiple requests under the FOIA for "documents, emails, text messages, and other records" concerning a former FHA employee and more than 28 other FHA employees. You have attached several documents that the records custodian classified as your personnel records and determined are subject to disclosure "after redacting some personal and/or non-releasable information contained in the requested records." You have characterized these documents as your "notes regarding events from [your] daily interactions with residents within the Fayetteville Housing Authority Communities." You also request my review of the documents to determine whether the custodian's decision is consistent with the FOIA.

RESPONSE

In my opinion, most of the objections you have raised regarding the disclosure of certain information on the records at issue are beyond the scope of an opinion from this office under the FOIA. This is because of your belief that such information concerns the privacy interests of private citizens, which this office has no authority to address in an opinion under the FOIA. With respect to the remaining records, I cannot say the custodian was incorrect in deciding that this information should not be redacted.

DISCUSSION

Sincerely,

LESLIE RUTLEDGE
Attorney General