Can a Fort Smith employee block release of her compensation data because she does not know how the requester will use it?

Plain-English summary

A Fort Smith employee asked the Attorney General to review the city's plan to disclose 2021 employee names, salary or compensation, hire dates, and position titles. The city planned to withhold sensitive personal information, including addresses, birth dates, telephone numbers, and Social Security information. The employee objected because she did not know how the requester would use the information.

The Attorney General said the requested kinds of employment information are “subject to inspection and copying under the FOIA,” and the city's decision to withhold sensitive personal information was correct. The employee's objection was “not a legally sufficient reason under the FOIA to withhold the records.” The opinion refers to an attached earlier opinion, 2022-005, for the employee-record definitions and disclosure tests.

The Attorney General had not seen the responsive records. She therefore did not decide whether any particular document, or any particular piece of information within it, should be released. The custodian still has to apply the relevant test to the records in hand.

What this means for you

If you're the employee whose records were requested

The fact that you do not know the requester's intended use does not, by itself, stop disclosure of the listed employment information. You can identify specific sensitive personal information for the custodian to review; the city had already decided to withhold examples such as home addresses and Social Security information.

If you're the records custodian

Review the actual records and separate the requested employment information from sensitive personal information. The Attorney General approved the city's general approach, while expressly declining to rule on any unseen document or redaction. Use the definitions and tests in the attached Opinion 2022-005 when classifying employee-related records. This opinion gives no release deadline.

If you're the requester

The opinion supports inspection and copying of employee names, compensation, hire dates, and position titles. It also supports withholding sensitive personal details. It does not decide the contents of any specific record because the Attorney General did not see one.

Common questions

Q: Can uncertainty about my intended use block the request?
A: The Attorney General rejected that objection in this case. A footnote quotes the earlier opinion's observation that custodians cannot base disclosure on a requester's subjective motive.

Q: Did the Attorney General order release of a particular spreadsheet or personnel file?
A: No. She said she had not seen any responsive records and could not decide whether a specific document or redaction was releasable.

Q: What did the city intend to redact?
A: Its memorandum listed sensitive personal information “such as address, date of birth, telephone number, or social security information.” The Attorney General agreed that sensitive personal information should be withheld, while reserving judgment on particular redactions.

Background and statutory framework

The employee sought review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets a custodian, requester, or subject of certain employee-related records ask the Attorney General whether a release decision is consistent with the FOIA. This letter applies that review to the city's general disclosure decision. It incorporates Opinion 2022-005 for the applicable definitions and tests, and its footnote quotes that opinion on requester motive.

Citations and references

Statute: Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

Attached opinion: Op. Att'y Gen. 2022-005.

Source

• Official opinion search: Arkansas Attorney General opinions

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-008

January 24, 2022

Tracy Koleszar-Burbee
c/o Rick Lolley, Human Resources Director
City of Fort Smith
P.O. Box 1908
Fort Smith, AR 72902

Dear Ms. Koleszar-Burbee:

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 because you are unaware of how the requester will use the information. 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 objection you have raised is not a legally sufficient reason under the FOIA to withhold the records.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1 See Op. Att'y Gen. 2022-005 at n.18 (noting that “neither the Arkansas Legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester[,]” quoting Op. Att'y Gen. 2014-094).