Can the City of Crossett release employee salary, hire date, position title, and name records under Arkansas FOIA?

Plain-English summary

Ten Crossett city employees asked for review of a proposed release of 2020 employee salary, hire-date, title, and name records. The custodian considered the records personnel records and proposed releasing them while withholding sensitive personal information, including addresses, birth dates, phone numbers, and Social Security information.

The AG had not seen the responsive records. She therefore could not decide release of a specific document or the need to redact a particular item. She said generally that the bulk of the requested salary, hire-date, title, and name information was open to inspection and copying, and that the custodian correctly identified sensitive personal information as not releasable.

The PDF gives the general personnel-records privacy balance and a longer list of information that may require redaction from otherwise releasable records. It also says a requester's identity or motive generally does not determine whether a record must be released. It does not decide the validity of an individual employee's objection as a separate question.

What this means for you

If you are a records custodian

Classify each responsive document and apply the correct disclosure test. The AG considered these categories of compensation and employment information generally open, subject to required redactions. The opinion does not clear every document in the custodian's possession for release.

If you are an employee or requester

The AG's general answer favors disclosure of the requested compensation and job information. A particular record can still require privacy review and redaction, which the AG could not perform without seeing it.

Currency note

This opinion was issued in 2021. Verify current Arkansas law before applying its disclosure rules.

Common questions

Did the AG approve every requested document for release? No. She had not seen the records and expressly could not decide disclosure or redaction of any specific document.

What information did the AG generally say was open?
The bulk of the requested salary or compensation, hire date, position title, and employee name information.

What did the AG say about sensitive details?
She agreed with withholding sensitive personal information. Her general discussion lists personal contact details, birth dates, Social Security numbers, medical and banking information, and other items that may have to be redacted.

Did an employee objection automatically defeat release? The opinion gives no separate ruling on that question. It explains the objective personnel-records privacy test and says a requester's identity or motive generally is irrelevant.

Background and statutory framework

The opinion applies the FOIA's personnel-records exception and the court's privacy balancing test. The AG described records of employees' salaries, hire dates, position titles, and names as likely personnel records, while leaving individual document review to the custodian.

Citations

• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2021-037

June 3, 3021

Andrew Brigham
Kesha Campbell
Anthony Cockrell
Stephen Gage Henderson
Phillip B. Hicks
Chester G. Kelley
Gerald Kelley
Matthew Pepper
Lester Tucker, Jr.
Steven Wilkerson
c/o The Honorable Crystal Marshall
Office of the Mayor
201 Main Street
Crossett, AR 7163 5

Dear Ms. Campbell and Messrs. Brigham, Cockrell, Henderson, Hicks, Kelley , Kelley , Pepper, Tucker, and Wilkerson:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your requests, which are made as the subjects of the requested records, are 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 Crossett has received a request under the FOIA for "records regarding the salary/compensation, hire date, position titles and names of any and all employees for the year 2020. " You have attached a memorandum from the custodian of the records in which she has determined that the requested records are personnel records that are releasable pursuant to the FOIA, but that " sensitive personal information, such as address, date of birth, telephone

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number, or social security information," is not releasable. As the subjects of the requested records, you all object to the release of these records and ask whether the custodian's decision regarding the release of the records is consistent with the FOIA.

RESPONSE

Because I have not seen any records that would be responsive to your 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 state generally, however, that the bulk of the information requested (salary/compensation, hire date, position titles, and employee names) is subject to inspection and copying under the FOIA. Additionally, the custodian has correctly decided that sensitive personal information is not releasable.

I will 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 specific 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 City of Crossett, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. 1 Because the records are held by a public entity,

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).

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they are presumed to be public records, 2 although that presumption is rebuttable. 3 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. 4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records." 6 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

z Id.

3
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 3 70 Ark. 43 5, 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).

4
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 ACT 205-06 (Arkansas Law Press, 6th ed., 2017).

5
Ark. Code Ann.§ 25-19-105(b)(l2): "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." 6 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 ifthere is a compelling public interest in their disclosure."

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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. 7 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." 8

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 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. 10

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 minim is privacy interest. 11 If the privacy interest is merely de minim is, 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. 12

7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

8
Ark. Code Ann.§ 25-19-105(b)(l2).

9
308 Ark. 593, 826 S.W.2d 252 (1992).

10
Watkins, et al., at 208.

11
Young, 308 Ark. at 598, 826 S.W.2d at 255.

12
Id., 826 S.W.2d at 255.

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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. 13 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. 14

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15 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. 16 Again, the test under the FO IA 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. 17 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. 18

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

14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

16
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

17
See Ops. Att'y Gen. 2019-047, 2018-061.

18
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- 047 (and opinions cited therein).

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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-l 9-105(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, 2003-385);
• 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. 19 But the Arkansas Supreme Court has adopted this office's view that the term refers to any records (l) 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

19
I will refer to this group of records as "employee-evaluation records."

20
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.

21
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

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Additionally, some employee-related records constitute "mixed records," i.e., records 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. 22

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). 23

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: (I) 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. 24

22
See Op. Att'y Gen. 2020-037 (and opinions cited therein).

23
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

24
Watkins, et al., at 238-39 (footnotes omitted).

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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, 25 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 m the employee/employer relationship. 26

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 two kinds 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. The custodian in this case has determined that the requested records are personnel records. Although I have not seen the records, I have no information to suggest that the custodian's decision to classify them as personnel records is incorrect. Indeed, I can state generally that records of employees' salaries, hire dates, position titles, and names likely constitute personnel records. 27

The custodian has determined that the requested records are subject to release, but that "sensitive personal information, such as address, date of birth, telephone number, or social security information'' is not releasable. While I cannot opine on the release of any specific records here, I can state that the bulk of the information requested (salary/compensation, hire date, position titles, and employee names) is subject to inspection and copying under the FOIA. 28 I can also state that the custodian has correctly decided that sensitive personal information is not releasable.

25
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").

26
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

27
See, e.g., Op. Att'y Gen. 2009-204.
28
See Op. 2008-129 (and opinions cited therein).

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Additionally, the custodian has noted that employee evaluation records are not releasable "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 met, 29 that decision is also consistent with the FOIA.

Finally, as noted above, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. 30 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 identity or subjective motive for wanting the record.

Sincerely,

~::~~;:::~~>- L. //?1~
LESLIE RUTLEDGE
Attorney General

29
Supra test accompanying n.23.

30
Supra n.18.