Can a city release a police captain's name with his salary and job position over his objection that the FOIA request is overly broad and an invasion of all employees' privacy?

Plain-English summary

Captain Ronald Gallant objected to Fort Smith's planned release of records showing current employees' names, positions, salaries, and salary increases since 2015. He called the request "overly broad and an unwarranted invasion of personal privacy for all employees of the City." The AG did not repeat a legal analysis in her response. She said Gallant's request was virtually identical to one addressed in Opinion 2021-084, issued the same day, and referred him to that enclosed opinion for the analysis and conclusions.

Opinion 2021-084, enclosed with the official PDF, concerned the same Fort Smith records request. There the AG said that, although she had not seen the records, release of the named employee's name, position, salary, and raises was consistent with the FOIA based on the facts supplied. Its application said the public interest in basic employment information was substantial and outweighed the potential privacy interest. Opinion 2021-086 adopted that analysis and conclusion for Gallant; it did not independently define or decide a general rule about "overly broad" FOIA requests.

What this means for you

If you are a city records custodian

The AG directed Gallant to the reasoning of Opinion 2021-084. That enclosed opinion considered disclosure of basic employment information under the personnel-records privacy test and listed information requiring redaction. Review the actual records and applicable exemptions before release.

If you are an employee named in a salary request

Gallant's breadth and privacy objection did not cause the AG to change the result reached in Opinion 2021-084. This letter does not rule on every objection a subject might raise or on the releasability of every item in a personnel file.

If you requested salary records

For the described Fort Smith request, the AG applied the conclusions of Opinion 2021-084. The enclosure says basic name, job-position, and salary information generally does not create a clearly unwarranted invasion of personal privacy. Sensitive personal details still require separate review.

Common questions

Did the AG separately analyze whether the request was too broad? No. She quoted Gallant's objection and referred him to Opinion 2021-084 for the same analysis and conclusions.

Did the AG perform a new privacy balance for Gallant?
No separate balance appears in the 2021-086 letter. The enclosed 2021-084 opinion explains why release of the basic employment information in that same records request was consistent with the FOIA on the facts provided.

Where is the substantive analysis?
In Opinion 2021-084, enclosed with the official PDF for this opinion.

Background and statutory framework

Opinion 2021-086 is a short referral to Opinion 2021-084. The enclosed opinion discusses the personnel-records test under Ark. Code Ann. § 25-19-105(b)(12) and the public interest in employee names, job positions, and salaries. This page attributes those conclusions to the enclosure and treats the Gallant letter as adopting them.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records privacy test in enclosure)
• Ark. Op. Att'y Gen. 2021-084 (enclosed analysis and conclusions)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2021-086

October 11, 2021

Captain Ronald Gallant
c/o Rick Lolley, Director
Fort Smith Human Resources
P. 0. Box 1908
Fort Smith, AR 72902

Dear Captain Gallant:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). 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 Fort Smith (City) has received a request under the FOIA for "records that show all current employees' salaries, with their names and job position and any salary increases since 2015. " The records custodian has determined that the requested records are releasable, and has stated that " [n ]o sensitive personal information such as address, date of birth, telephone number or social security information will be released." You object to the release of your name in conjunction with the other requested records because you believe the request is "overly broad and an unwarranted invasion of personal privacy for all employees of the City." You ask whether the decision to release the requested records is consistent with the FOIA.

RESPONSE

Your request for my opm1on regarding the custodian's decisions as to the classification and disclosure of your employment-related records, including your objections to those decisions, is virtually identical to the request I have responded

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Captain Ronald Gallant
Opinion No. 2021-086
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to in Op. Att'y Gen. 2021-084, published of even date. The legal analysis and its application to your request consequently are the same as in that previous opinion. Therefore, I will not repeat the opinion herein, but instead refer you to the enclosed Opinion 2021-084 for the substantive analysis and conclusions.

Sincerely,

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

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STATE OF ARKANSAS
ATTORNEY GEN ERAL
LESLIE RUTLEDGE

Opinion No. 2021-084

October 11, 2021

Mr. Bill Striplin
c/o Rick Lolley, Director
Fort Smith Human Resources
P. 0. Box 1908
Fort Smith, AR 72902

Dear Mr. Striplin:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). 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 Fort Smith has received a request under the FOIA for "records that show all current employees' salaries, with their names and job position and any salary increases since 2015." The records custodian has determined that the requested records are releasable, and has stated that " [n]o sensitive personal information such as address, date of birth, telephone number or social security information will be released." You object to the release of your name in conjunction with the other requested records because you believe this release may subject you "to harm and embarrassment unnecessarily." You ask whether the decision to release the requested records, specifically your name, is consistent with the FOIA.

RESPONSE

Although I have not seen the records that the custodian intends to release, I believe, based on your representation, that the custodian's decision to release your name, job

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Mr. Bill Striplin
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position, and salary, including salary increases, is consistent with the FOIA and with the long-held opinion of this office.

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 Fort Smith, 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 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

1
The FOJA 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. 2021 ).

3
See Pulaski Cty. v. Ark. Democrat-Gazelle, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) ("the presumption of public record status established by the FOJA 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;

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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. In this instance, I believe it is clear that the relevant exception is the one for personnel records. I will therefore limit my discussion to the test for disclosure relating to those types of records. 7

The FOIA does not define the term "personnel records." But this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. 8 Whether a particular record meets this definition is, of course, 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

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)(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)( 1): "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 if there is a compelling public interest in their disclosure." 7 Regarding "employee evaluation or job performance records," the Arkansas Supreme Court has adopted this office's view that the term refers to any records (I) 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. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The record in question plainly does not constitute an employee-evaluation record. Consequently, I will not undettake any fmther discussion of that exception. 8 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

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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 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. 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 any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 15 And whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 16

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.

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.

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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:

• 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);

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- 047 (and opinions cited therein).

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• 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 ).

III. Application.

This office has long and consistently opined that the release of public employees' names, job positions, and salary must be evaluated under the provision of the FOIA applicable to "personnel records," 20 and that the release of such information generally does not rise to the level of a clearly unwarranted invasion of personal privacy. 21 At issue here is whether disclosing documents that reflect your name, job position, and salary would amount to a "clearly unwarranted invasion of personal privacy" under this balancing test. In my opinion, it does not. It has long been the opinion of this office that the public interest in this type of basic employment information is substantial and any potential privacy interest does not outweigh it. 22

Sincerely,
.,,~-·-·--·--···- .
·~:::),.. L.

LESLIE RUTLEDGE
Attorney General

20
E.g., Ops. Att'y Gen. 2012-014, 2011-132, 2011-045, 2011-114, 2002-107, 96-205.

21
E.g., Ops. Att'y Gen. 2012-014 and 2011-045.

22
E.g., Op. Att'y Gen. 2008-050 (citing Ops. Att'y Gen. 2007-001, 2005-194, 2005-057, 2004- 225, and 2002-087). See also Ops. Att'y Gen. 2005-074 (and opinions cited therein); 2003-298 ("[T]he public interest in obtaining salary information relating to public employees, including the identity of particular employees, outweighs the employees' privacy interests."); 98-126 ([S]alary information is clearly subject to disclosure, as such information does not constitute a "clearly unwarranted invasion of personal privacy[,]" citing Ops. Att'y Gen. 96-205, 95-242, 95-070, and 94-198); 95-220 ("[ c ]ou11s have found relatively little privacy interest in records revealing names of public employees.")); and 90-335 ("[t]he 'public' is the employer of these individuals, and pays their salaries [and] [i]t is not unreasonable to expect that an employer would have an interest in knowing whom it employs.").

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