Can a Fort Smith employee block release of her name, salary, hire date, and position by claiming the requester might use the data improperly?

Plain-English summary

This is one of four near-parallel AG opinions issued in January and March 2022 about the same City of Fort Smith FOIA request: a member of the public asked the city for 2021 records showing every employee's name, salary, hire date, position title, bonuses, overtime, and gross wages. The city's records custodian decided to release the records but to redact sensitive personal information (address, date of birth, telephone number, Social Security data). Several employees who would be named in the records each filed their own request with the AG asking whether the custodian's decision was consistent with the FOIA.

Meredith L. McGary objected on the ground that the requested information could be used for "invasive or improper purposes." Attorney General Leslie Rutledge's response in this opinion was the same as in the other three: the custodian's decision was correct. Names, compensation, hire dates, and position titles of public employees are subject to FOIA inspection and copying under settled Arkansas law. Sensitive personal information must be redacted, which the custodian had already decided to do. A subject's concern that the data could be misused is not a legally sufficient reason to withhold an otherwise public record, because the FOIA test for "clearly unwarranted invasion of personal privacy" is objective (it asks whether disclosure would shed light on government, not who the requester is or what they might do with the information).

Rather than repeat the full legal framework, the AG attached and incorporated by reference Op. Att'y Gen. 2022-005 (issued the day before to a different Fort Smith employee on the same FOIA request), which sets out the Young v. Rice balancing test for personnel records, the Thomas v. Hall test for employee evaluation records, and the categories of sensitive personal information that custodians must redact.

What this means for you

If you're a public employee whose data has been requested

Your subjective objection is not enough. Arkansas FOIA's privacy test is objective. For public employees, the public's interest in compensation transparency typically outweighs an individual privacy interest in routine pay and identification data. The redaction list (home address, personal phone, DOB, SSN, banking info) protects the categories that genuinely raise privacy concerns; the rest goes out.

If you're a custodian responding to a public employee compensation request

The path here is the model: classify as personnel records, apply Young v. Rice (greater than de minimis privacy interest weighed against public interest, scale tipped toward disclosure), redact the standard sensitive-personal-information categories, release the rest. Document the analysis in writing in case the decision is later challenged.

If you're a journalist or requester

Cite this opinion (or 2022-005) when a custodian hesitates to release routine compensation data on the basis that the subject objects. The objection alone is not a basis to withhold; the custodian has to point to a specific statutory exception.

Common questions

Q: Why does this opinion not repeat the legal analysis?
A: The AG had just written it out in detail one day earlier in Op. Att'y Gen. 2022-005 in response to a different Fort Smith employee. Rather than re-paste the whole framework into each subsequent opinion, the AG attached the prior opinion and incorporated it by reference. That's standard practice when several record subjects raise similar objections to the same release.

Q: Could "the data might be misused" ever justify withholding?
A: Not directly. Possible misuse is a real concern, but Arkansas FOIA does not let a custodian or subject preempt release based on speculated downstream use. The exceptions are statutory (and narrow). The recourse if data is misused is whatever civil or criminal claim is otherwise available, not an upstream block on disclosure.

Q: How is this different from a "harassment" exemption?
A: Some states have a separate exemption for records that could be used to harass an employee. Arkansas does not. The AG opinion's footnote in 2022-005 specifically calls this out: "the Legislature has not seen fit to include a generalized 'harassment' exemption to the release of otherwise disclosable employee-related records."

Background and statutory framework

This opinion exists because Ark. Code Ann. § 25-19-105(c)(3)(B)(i) gives the subject of certain employee records standing to ask the AG for an opinion when the custodian decides to release. The procedure is fast (the AG must issue an opinion within three business days), advisory, and a useful pause point before release actually happens. Each separate subject who objects can request a separate opinion, which is why four near-parallel opinions exist for the same Fort Smith request.

The substantive law is in Op. Att'y Gen. 2022-005, which this opinion attaches and incorporates. The short version: Arkansas FOIA presumes records held by public entities are public; the personnel-records exception under § 25-19-105(b)(12) is narrow and requires "clearly unwarranted invasion of personal privacy" judged objectively under Young v. Rice; the employee-evaluation exception under § 25-19-105(c)(1) requires suspension or termination, finality, basis, and compelling public interest under Thomas v. Hall; sensitive personal information is always redacted regardless.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (record subject's right to AG opinion)

AG opinion incorporated by reference:

• Op. Att'y Gen. 2022-005 (full legal framework for FOIA disclosure of employee compensation records)

Source

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

Original opinion text

Opinion No. 2022-007

January 21, 2022

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Meredith L. McGary
c/o Rick Lolley, Human Resources Director
City of Fort Smith
P.O. Box 1908
Fort Smith, AR 72902

Dear Ms. McGary:

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. 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 regarding the salary/compensation, hire date, position titles, and names of any and all employees for the year 2021. You have attached a memorandum from the custodian of the records in which he 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 number, or social security information," will not be released. As the subject of the requested records, you object to the release of the information on the grounds that the information could be used for invasive or improper purposes. You 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 type of information requested (employee names, salary/compensation, hire date, and position titles) is subject to inspection and copying under the FOIA. Additionally, the custodian has correctly decided that sensitive personal information is not releasable.

Please note that I have attached a previous opinion of this office, Op. Att'y Gen. 2022-005, that explains the legal standards that must be applied to determine whether the employee-related records in question must be disclosed pursuant to the FOIA. I will not repeat those standards herein, but instead refer you to the attached opinion for the applicable definitions and tests. It is my opinion that the custodian appears to have properly applied these legal standards in deciding to release the records at issue while withholding "sensitive personal information." Moreover, the objections you have raised are not legally sufficient reasons under the FOIA to withhold the records.

Sincerely,

LESLIE RUTLEDGE
Attorney General