Can a Helena-West Helena city employee block release of her personnel file when the custodian has already classified some records as exempt?

Plain-English summary

The City of Helena-West Helena received a FOIA request for the personnel file of city employee Juanita Mills. The custodian decided that some of the responsive records were releasable, some were exempt, and certain information had to be redacted before any release: medical information, date of birth, driver's license, Social Security number, personal address, and personal phone number. Mills, as the subject of the records, asked the AG to review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

Attorney General Leslie Rutledge declined to give a substantive document-by-document opinion because the records themselves had not been provided. The opinion is therefore a framework recap rather than a granular review.

The framework parallels what the AG has set out in many other opinions: a record must be released if (1) the request is made to a public entity, (2) the document is a public record, and (3) no exception authorizes withholding. Two main exceptions cover employee records: the personnel-records exception (§ 25-19-105(b)(12)) for everything in an employee's file other than evaluations, and the employee-evaluation exception (§ 25-19-105(c)(1)) for documents created by or at the behest of the employer to evaluate the employee. Personnel records are released subject to the Young v. Rice balancing test ("clearly unwarranted invasion of personal privacy" weighed against public interest in disclosure, scale tipped toward disclosure). Employee-evaluation records have to clear the four-prong test: suspension or termination, finality, basis, compelling public interest.

The AG noted that the categories the Helena-West Helena custodian planned to redact (medical info, DOB, driver's license, SSN, home address, personal phone) are the standard categories the AG has consistently identified as required redactions from otherwise releasable personnel records. So the custodian's redaction plan aligned with the framework.

The opinion also reminds custodians that not every record in a "personnel file" qualifies as either a personnel record or an evaluation record under the FOIA's specific definitions. Some may be plain non-exempt public records that don't need an employee-records analysis at all; others may be neither. Each document gets classified separately.

What this means for you

If you're the subject of a personnel-file FOIA request

Provide the AG (or the custodian's review process) with as specific a description of objections as possible. A general "I object" without identifying particular records or particular concerns gives the AG very little to work with. If you have specific concerns (a record that seems mis-classified as personnel rather than evaluation, or vice versa, or sensitive info that the redaction list does not cover), name them.

If you're a custodian responding to a personnel-file request

Classify each document. Don't bulk-tag the whole file as "personnel records" or "evaluation records." Each document gets its own classification, and the right test gets applied. Use the AG's standard sensitive-personal-information redaction list (medical, DOB, driver's license, SSN, address, personal phone, personnel number, banking info) as the floor; specific facts may justify additional redactions (e.g., undercover officer identification under § 25-19-105(b)(10)).

If you're a journalist or requester

If a custodian's response is "some records will be released, some are exempt, some redacted," and you don't have line-level detail, you have a right to ask the custodian to identify specifically what's being withheld and why. Bulk classifications without explanations are vulnerable to challenge under § 25-19-107 (judicial enforcement).

Common questions

Q: What's the difference between a "personnel record" and an "employee evaluation record"?
A: Personnel records are everything in your file other than formal evaluations (applications, payroll, leave, transfers, promotions, demotions, disciplinary records, training certificates). Employee evaluation records are documents created by or at the behest of the employer specifically to evaluate the employee's job performance. The two have very different release tests; mis-classifying matters.

Q: Why did the AG decline to review the actual records?
A: The AG opinion process under § 25-19-105(c)(3)(B)(i) does not always include record review. Sometimes the custodian sends the records along with the inquiry; sometimes (as here) the AG only sees the description. Without the records, the AG can only recap the framework. If you want a substantive review, push the custodian to send the records to the AG.

Q: Are the standard redactions the same in every Arkansas city?
A: Yes, the floor is the same statewide because it comes from FOIA exceptions and AG opinions interpreting them. Specific cities might add redactions for context-specific reasons (a city with active undercover officers, for example, has more § 25-19-105(b)(10) work to do).

Q: Can the custodian redact more than the standard list?
A: Yes, if a specific statutory exception applies. For example, ongoing-investigation records under § 25-19-105(b)(6) get more redaction; protected witness information gets more redaction; certain personal protective-order details get more. But each additional redaction has to point to a specific statutory hook.

Background and statutory framework

This opinion is one of several in 2022 in which a record subject (Mills) used the § 25-19-105(c)(3)(B)(i) procedure to seek an AG opinion. Unlike the Fort Smith series (Ops. 2022-005, -007, -008, -009), which involved a single coordinated FOIA request and four employees objecting, this opinion is a stand-alone request from one Helena-West Helena employee.

The framework the AG cites is settled Arkansas FOIA law. The leading cases are Young v. Rice (personnel-records balancing) and Thomas v. Hall (employee-evaluation definition). The standard redaction list comes from a long line of AG opinions interpreting the personal-information protections scattered through § 25-19-105 (subdivisions (b)(10), (b)(11), (b)(13)) plus general privacy reasoning.

Helena-West Helena's redaction list (medical, DOB, driver's license, SSN, address, phone) is essentially the standard list. The AG noted as much, even without seeing the underlying records.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (record subject's AG opinion right)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)

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. 2022-018

March 16, 2022

Juanita Mills
c/o Andre Valley, Esq.
Helena-West Helena City Attorney
P.O. Box 248
Helena, AR 72342

Dear Ms. Mills:

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 Helena-West Helena has received a request under the FOIA for your personnel file. The custodian has decided that some of the responsive records are subject to disclosure, some are exempt from disclosure, and certain information must be redacted prior to the records' release, including any medical information and your date of birth, driver's license, Social Security number, personal address, and personal phone number. 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 the 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 only 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 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 Helena-West Helena, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly. The personnel-records exception under § 25-19-105(b)(12) applies the Young v. Rice "clearly unwarranted invasion of personal privacy" balancing test. The employee-evaluation exception under § 25-19-105(c)(1) requires release only if (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed a basis for that decision, and (4) the public has a compelling interest in disclosure.

Even if a document is releasable as a personnel record, certain information must be redacted: personal contact information of public employees, employee personnel number, marital status and information about dependents, dates of birth, Social Security numbers, medical information, undercover officer identifying information, driver's license details, insurance coverage, tax withholding, payroll deductions, and banking information.

III. Application.

The custodian's plan to redact medical information, date of birth, driver's license, Social Security number, personal address, and personal phone number aligns with the standard redaction list. Without seeing the responsive records, I cannot opine on whether the specific records have been correctly classified or whether other redactions or releases are required. The custodian must classify each responsive document as a personnel record, an employee-evaluation record, or a public record outside both exceptions, and apply the applicable test.

Sincerely,

LESLIE RUTLEDGE
Attorney General