If a FOIA request for an Arkansas state trooper's personnel file looks politically motivated, can the custodian deny it on that ground, and what should be redacted?

Plain-English summary

Robert Gault, an Arkansas State Police employee, learned that ASP had received a FOIA request for his personnel file. The records custodian decided to release some records and identified specific items to be withheld: medical records and information, personal contact information, home address and phone, date of birth, Social Security number, marital status, and "employee evaluation or job performance records that did not result in a suspension or termination."

Gault objected on the ground that the request was politically motivated, and asked the AG whether the custodian's decision to release was consistent with FOIA.

Attorney General Leslie Rutledge gave two answers:

1. The custodian's planned redactions are generally consistent with FOIA. They match the standard items the AG has consistently said should be withheld from personnel records.
2. The objection ("the requester is politically motivated") is not a legally sufficient reason to withhold otherwise releasable records. A FOIA requester's identity or motive for making a request is generally irrelevant.

The AG could not opine on the specific releasability of any document because she did not have copies. The custodian still has to do the per-document classification (personnel record vs. evaluation record) and apply the right test in each case.

What this means for you

If you are a public employee whose records are about to be released

A subjective belief that the requester is politically motivated does not itself justify withholding non-exempt records. The Arkansas FOIA balancing tests are objective. The two questions the law asks are:

• Does the document, considered objectively, shed light on the workings of government for the general public?
• Does its release amount to a clearly unwarranted invasion of personal privacy?

Neither question has an "and was the requester nice about it" prong. The AG cited a chain of opinions making this point: 2018-087, 2018-061, 2014-094, 2019-036, 2018-125, 2012-014, 2011-107.

What you can do is push for thorough redactions. The standard list of items that must be redacted is long: home address, personal phone numbers, personal email, employee personnel number, marital status and dependents, DOB, SSN, medical information, undercover-officer identifying info, driver's license, insurance, tax info, payroll deductions, and banking info. Make sure your custodian applies all of these.

If you are a records custodian

Two operational reminders:

1. Don't deny based on perceived motive. A request is a request. Document the redaction list and stay objective. The opinion explicitly notes that the legislature has not enacted a "harassment" exemption.
2. Per-document classification matters. Each document needs to be classified as a personnel record (Young v. Rice balancing) or an evaluation record (four-part test). The AG cannot help you on documents she has not seen, and a list of categories to be withheld does not relieve the custodian's duty to do the per-document analysis. Pages within a single file may need different treatments.

If you are a FOIA requester whose request was challenged as politically motivated

Your motive is generally irrelevant to disclosure. The custodian must classify each record and apply the statutory test. Footnote 18 says a motive may be considered only insofar as it reveals a previously unseen objective public interest; it cannot itself be the basis for the decision.

Common questions

Q: What did the AG actually decide?
A: That the custodian's general redaction list (medical, personal contact info, home address, DOB, SSN, marital status, and non-disciplinary evaluation records) is consistent with FOIA. And that the requester's political motivation does not change the analysis.

Q: Why couldn't the AG decide more?
A: Because she had not seen the actual records ASP planned to release. Without seeing each document, she could not apply the correct test (personnel-record vs. evaluation-record) on a per-record basis. That is the custodian's job in the first instance.

Q: Does the requester's identity ever matter?
A: Footnote 18 says a requester's subjective motive cannot be the basis for the decision, but may be considered if it supplies a previously unseen objective public interest. The AG said identity and motive are generally irrelevant to whether non-exempt records must be released.

Q: Why aren't evaluations that did not lead to discipline disclosable? A: Because the four-part test in § 25-19-105(c)(1) requires (a) the employee to have been suspended or terminated and (b) the specific records to have formed the basis for that discipline, plus finality and compelling interest. If a performance evaluation was not the basis for any suspension or termination, the first prong is not met and the record is not releasable.

Q: What about evaluations that DID lead to discipline? A: They go through the full four-part test. The custodian, not the AG, runs it.

Background and statutory framework

Standard Arkansas FOIA framework:

• Personnel records (§ 25-19-105(b)(12)) are released under the Young v. Rice two-step balancing test, with the scale tipped toward disclosure. Standard redactions apply.
• Evaluation or job-performance records (§ 25-19-105(c)(1)) are released only if all four prongs are met (level of discipline, finality, basis, compelling public interest). Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines what counts as an evaluation record.
• Per-document classification by the custodian is required.
• Requester motive is generally irrelevant, per a long line of AG opinions.
• Subject objection is not by itself a basis for withholding, because the test is objective.

The custodian-opinion review under § 25-19-105(c)(3)(B)(i) is bounded to a particular custodian decision; the AG cannot review hypothetical or undecided issues.

Citations

• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Ops. Att'y Gen. 2019-036, 2018-125, 2018-087, 2018-061, 2014-094, 2012-014, 2011-107 (requester motive irrelevant)
• Op. Att'y Gen. 2019-047 (no harassment exemption)

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTORNEY GENERAL
LES LI E RUT LED GE

Opinion No. 2021-076

September 22, 2021

Robert N. Gault
c/o Katlyn Nelson, Legal Support Specialist
Arkansas State Police
1 State Police Plaza Drive
Little Rock, AR 72209

Dear Mr. Gault:

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.

You indicate that the Arkansas State Police ("ASP") has received a request under the FOIA for your personnel file. The records custodian has determined that some records in your personnel file are subject to disclosure but that certain information and records contained in the file cannot be released. Specifically, the custodian has identified the following as being exempt from disclosure: "medical records/medical information"; "personal contact information"; "home address, home telephone number, and date of birth"; "social security number"; "marital status"; and "employee evaluation or job performance records that did not result in a suspension or termination." You object to the release of any records from your personnel file on the grounds that the request is politically motivated, and you ask whether the custodian's decision to release the records as redacted is consistent with the FOIA.

RESPONSE

My duty under subsection 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the

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FOIA. Because I have not seen any records that ASP 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. I can state, however, that the custodian's decision as to what information must be redacted appears to be generally consistent with the FOIA.

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. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. This is the responsibility of the custodian in the first instance.

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 ASP, 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, 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 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).

3
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).

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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 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-

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; ce11ificates 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 )( 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." 6 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.''

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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 considerations the custodian must take into account. 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. 11 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. 12 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

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 )( 12).

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.

13
Stilley v. 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.

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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 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. 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:

• 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);

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 cou1ts 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 a previously unseen objective public interest. 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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• 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. 19 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

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);

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.

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

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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: ( 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 trust should be sufficient to satisfy the "compelling public interest" requirement. 24

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 in the employee/ employer relationship. 26

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

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

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.

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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 kind 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. I have no information regarding the custodian's classification of any particular records from your personnel file. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.

While I cannot opine on the release of any specific records here, I will note that the custodian has determined that your medical records and medical information, personal contact information, home address, home telephone number, date of birth, Social Security number, and marital status must be redacted from any releasable records. That decision is, in my opinion, consistent with the FOIA. Furthermore, the custodian has stated that "any employee evaluation or job performance records that did not result in a suspension or termination" would not be subject to disclosure. That decision is also consistent with the FOIA, though I will note that your employee-evaluation records are not subject to release unless the other three prongs of the test set out above are met as well. 27

Finally, the objection you have raised is not a legally sufficient reason to withhold the records at issue. 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 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. 29 The custodian's analysis cannot be based on a requester's subjective motive for wanting the record.

Sincerely,

~:=:::;::>_ L. //~-j;
LESLIE RUTLEDGE
Attorney General
27
Supra text accompanying n.23.
28
Supra n.18.
29
See Ops. Att'y Gen. 2018-087, 2018-061.

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