Can a North Little Rock School District employee block FOIA release of personnel records by claiming the requester's motive is a personal vendetta against the communications director?

Plain-English summary

The North Little Rock School District received a FOIA request for "personnel records for every employee in the district." Lori Brush-Finley, an NLRSD employee, objected. Her main concerns: the requester had publicly stated on social media that the request was meant to satisfy a "personal vendetta" against the district's communications director, and she worried that her exempt personal information might accidentally get released given how voluminous the request was.

The AG provided a limited response. Three points:

Requester motive is irrelevant. The opinion is direct: "neither the Arkansas Legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester." A vendetta claim, even one the requester openly states, is not a basis for denial. There is no harassment exemption to FOIA.

The AG cannot enforce FOIA. Section 25-19-105(c)(3)(B)(i) gives the AG advisory authority to opine on whether release decisions are consistent with FOIA. It does not give the AG enforcement power. The opinion says negligent FOIA violations can carry a Class C misdemeanor penalty under § 25-19-104 and that a citizen may seek judicial review under § 25-19-107.

The standard framework still applies. Personnel records get the Young v. Rice balancing test. Evaluation records get the four-prong test. Required redactions (personal contact info, DOB, SSN, medical, banking) apply across the board. Voluminous nature of a request is not a basis for denial; it can be a basis for an extended timeline.

The AG declined to opine on the specific records (none were provided) and instead set out the general framework.

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

What if the requester admits they want to embarrass me?

Still not a basis for denial. The opinion is unambiguous. The custodian's analysis must be objective. The AG did not apply the privacy balance to any specific record.

Did the AG decide which records about the communications director must be released?

No. The AG had not seen the responsive records and could not decide release or redaction of any specific item. She explained that the requester’s subjective motive generally did not control the custodian’s disclosure decision.

Can the AG order the custodian to do anything?

No. The AG provides an advisory opinion. The custodian decides what to do. The opinion notes that a negligent FOIA violation is a Class C misdemeanor and that a citizen may seek circuit-court review of a custodian’s decision.

What if the custodian releases my exempt personal information by mistake?

The AG said a subject may view their own records before disclosure under § 25-19-105(c)(2), (3). She also said a custodian’s decision is subject to judicial review under § 25-19-107. The opinion did not decide whether a mistaken release had occurred or specify a remedy for one.

Background and statutory framework

The opinion repeats the standard framework: three-element test for disclosure, personnel-records exception with Young v. Rice balancing, evaluation-records exception with the four-prong test, and the standard required-redactions list.

Two specific points unique to this opinion:

• The AG cannot enforce FOIA. Enforcement is criminal (prosecutor) or civil (circuit court), not AG.
• Voluminous requests are not denied based on volume; they get extended timelines.

The motive-irrelevance rule has been expressed in many AG opinions: 2019-036, 2018-125, 2014-094, 2012-014, 2011-107. Op. 2014-094 expressly states that "neither the Arkansas Legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester."

Citations

• Ark. Code Ann. § 25-19-104 (criminal penalty for FOIA violations)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-19-107 (civil enforcement)
• Young v. Rice, 308 Ark. 593 (1992)
• Thomas v. Hall, 2012 Ark. 66

Source

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

Original opinion text

STATE OF ARKANSAS
THE ArT01mEY GENEnAL
LESLIE R UTLEDGE

Opinion No. 2021-028

May 12, 2021

Lori Brush-Finley
c/o Jacob Smith, Executive Director
Human Resources
North Little Rock School District
2400 Willow Street
North Little Rock, AR 72114

Dear Ms. Brush-Finley:

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 North Little Rock School District ("NLRSD") has received a request under the FOIA for "personnel records for every employee in the district." The records custodian has notified you of the request and of the custodian's determination "that some records are not exempt from disclosure and will be disclosed .... " You state that the requester "has made public, via social media, that his intentions are purely to satisfy a personal vendetta against [the school district ' s] communications director. " You also express concern that some of your exempt personal information may accidentally be released to the requester, given the voluminous nature of the request, and you seek my opinion.

RESPONSE

As a preliminary matter, I must emphasize that my duty under section 25-19- 105( c)(3 )(B) is to state whether the custodian ' s decision as to the release of

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Lori Finley
c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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"personnel or evaluation records" is consistent with the FOIA. The FOIA has no provision establishing a state compliance office and does not authorize the Attorney General to enforce FOIA requests. 1

This opinion is therefore limited to a discussion of the pertinent provisions of the FOIA bearing on employment-related records. Because I have not seen any records the school district 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. Accordingly, 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. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 NLRSD, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. 2 Because the records are held by a public entity, they

1
The FOIA provides two methods of enforcement. First, a negligent violation of the FOIA is a Class C misdemeanor. Ark. Code Ann. § 25-19-104 (Rep I. 2014). Tims, a citizen may request the county prosecuting attorney pursue criminal charges against the custodian. Second, and more commonly, the citizen may file her own lawsuit in circuit court to vindicate her rights under the FOIA. Id. at § 25-19-107.

2
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).

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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are presumed to be public records, 3 although that presumption is rebuttable. 4 Because I have no information to suggest that the presumption can be rebutted in this instance, 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. 5 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 6 or "employee evaluation or job performance records." 7 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

4
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). 5 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 Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed., 2017). 6 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." 7 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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."

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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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. 8 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. " 9

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy,'' the Arkansas Supreme Court, in Young v. Rice, 10 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. 11

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. 12 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

8
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

9
Ark. Code Ann.§ 25-19-105(b)(12).

10
308 Ark. 593, 826 S.W.2d 252 (1992).

11
Watkins, et al., at 208.

12
Young, 308 Ark. at 598, 826 S.W.2d at 255.

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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interest in disclosure. 13 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. 14 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. 15 Moreover, whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 16

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. 17 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. 18 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. 19

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:

13
Id., 826 S.W.2d at 255.

14
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

15
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

16
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

17
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

18
See Ops. Att'y Gen. 2019-04 7, 2018-061 .

19
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 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 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. 2019-04 7 (and opinions cited therein).

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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• Personal contact information of 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. 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)(l0));
• 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. 20 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. 21 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 22

20
I will refer to this group of records as "employee-evaluation records."

21
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'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.

22
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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Additionally, some employee-related records constitute "mixed records." Mixed records are ones that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record. 23

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). 24

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

23
See Op. Att'y Gen. 2020-03 7 (and opinions cited therein).

24
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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trust should be sufficient to satisfy the "compelling public interest" requirement. 25

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, 26 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. 27

III. Application.

Because I have not reviewed the records at issue, I am unable to opine definitively on whether the custodian's decision to release any particular record is consistent with the FOIA. I can only state that the custodian, in determining whether the requester is entitled to the personnel or employee-evaluation records at issue, must properly classify the documents and apply the appropriate disclosure test(s).

However, the objections you have raised are not legally sufficient reasons to withhold the records. As noted above, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. 28 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 governmental workings for the general public. A requester's subjective motive for wanting the record is not relevant to the custodian's decisions.

25
Watkins, et al., at 238-39 (footnotes omitted).

26
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] of 'rank-and-file' workers are at issue").

27
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
28
Supra n.19 (and accompanying text).

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c/o Jacob Smith, NLRSD
Opinion No. 2021-028
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Likewise, the custodian may not refuse to honor a FOIA request simply because the request requires the production of a large number of documents. 29 As this office has opined, the General Assembly "has not created an exception to disclosure for voluminous requests that take extensive time and resources to respond to." 30 Rather, an agency that receives a particularly voluminous request may "advis[ e] the requester, within three working days, that the search and compilation process is expected to be lengthy and that completion is anticipated by a certain date." 31 It appears, based on the memorandum you have provided, that this is what the NLRSD records custodian intends to do. And as a subject of the records request, you are entitled to view your own records the custodian intends to release prior to their disclosure. 32

As a final matter, please note that this opm10n does not preclude you from pursuing other legal remedies afforded by the FOIA. The custodian's decision is subject to judicial review under section 25-19-107, which provides for a citizen's appeal to enforce the rights granted by the FOIA. Such an appeal may be made to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party. 33

Sincerely,

.=::~:;:;::,- L. //~17
LESLIE RUTLEDGE
Attorney General

29
See Daugherty v. Jacksonville Police Dep't, 2012 Ark. 264, 411 S.W.3d 196 (2012) (holding that the FOIA does not allow a public agency to decline to comply with a request simply because it deems the request "too broad and too burdensome").

30
Op. Att'y Gen. 2012-141.

31
See Watkins, et al., at 304.

32
See Ark. Code Ann. § 25-19-105( c )(2), (3).
33
Id. at§ 25-19-107(a).