Can a public university release names, ranks, and salaries of faculty whose positions are being recommended for elimination under Arkansas FOIA?

Plain-English summary

Dr. Haroon A. Khan, a faculty member at the Arkansas State University System whose position was being recommended for elimination under a financial exigency plan, objected when the ASU System decided to release a list including his name, employment status (full or part time), rank, tenure status, department, and current salary in response to a FOIA request. The ASU System's records custodian determined that this basic employment information was releasable. Dr. Khan filed an objection under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the subject of certain employee records ask the AG whether the custodian's decision is consistent with FOIA.

The AG sided with the custodian. Names, ranks, tenure status, departments, and salaries of public employees are routinely classified as "personnel records" under Arkansas FOIA. Disclosure of such records is mandatory unless it would constitute a "clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12). Young v. Rice (1992) sets out a two-step privacy analysis: first, does disclosure trigger a greater than de minimis privacy interest, and if so, does the public interest outweigh that interest? The thumb sits on the disclosure side of the scale.

Basic employment information has long been treated by the AG as routine and disclosable. The opinion gathered citations going back to Op. Att'y Gen. 96-205 confirming the same answer. The fact that the position is being eliminated did not change the analysis. The custodian's decision to release the requested information was consistent with the FOIA.

The AG distinguished employee evaluation or job performance records from personnel records and, although she had not seen the list, said the requested information did not seem to be an evaluation record.

What this means for you

Public employees facing elimination, layoff, or termination

If your employer is an Arkansas public entity and a FOIA request comes in for basic employment information about you (name, position, department, salary), Arkansas law treats that information as a personnel record subject to disclosure. Your objection has to clear the Young v. Rice bar: a greater than de minimis privacy interest that outweighs the public interest in the information. Routine employment data does not meet that bar. A subjective concern that disclosure feels invasive, by itself, is not enough; the test is objective.

Specific items that the FOIA requires custodians to redact (even from records that are otherwise releasable): personal contact information (Ark. Code Ann. § 25-19-105(b)(13)), employee personnel number, marital status, dependents, dates of birth, social security numbers, medical information, undercover law-enforcement identifiers, driver's license number, insurance coverage, tax/withholding info, payroll deductions, and banking info. If the records the custodian plans to release contain any of these, ask for confirmation that they will be redacted.

Records custodians

When you receive a request for a list of public employees and their basic information, the default is disclosure. Run the analysis: (1) Is the entity receiving the request subject to the FOIA? (2) Does the document qualify as a public record? (3) Does an exception permit withholding? For the employment fields at issue here, the AG found a substantial public interest and said any potential privacy interest did not outweigh it. Run through the redaction checklist (personal contact info, dates of birth, SSNs, etc.).

The employee who is the subject of certain records may ask the AG to review the custodian's disclosure decision under § 25-19-105(c)(3)(B)(i), as Dr. Khan did here.

FOIA requesters and journalists

A request for the names, salaries, and basic employment data of public employees is supported by this opinion. The AG found the requested information releasable even though the faculty positions were being recommended for elimination. The opinion did not decide disclosure of every document related to the exigency plan.

University administrators and HR

For a list like the one described here, the AG found release of names, ranks, tenure status, departments, and salaries consistent with the FOIA. She had not seen the actual record, so review any particular document for other information before release.

Common questions

Q: What does Arkansas FOIA mean by "personnel records"? A: The statute does not define the term, but the AG has consistently defined personnel records as all records other than employee evaluation or job performance records that pertain to individual employees. Basic employment information falls in this category.

Q: What's the test for releasing personnel records?
A: Personnel records must be released unless disclosure would constitute a "clearly unwarranted invasion of personal privacy" (Ark. Code Ann. § 25-19-105(b)(12)). The two-step test from Young v. Rice (1992) asks: (1) Does the information trigger a greater than de minimis privacy interest? (2) If so, does that interest outweigh the public interest in disclosure? The thumb is on the disclosure side of the scale.

Q: Did the recommended elimination of these faculty positions block disclosure? A: No. The AG found release of the requested basic employment information consistent with the FOIA in this situation. She did not decide the disclosure status of other records about the elimination process.

Q: What about my privacy preferences?
A: The Arkansas Supreme Court and the AG have repeatedly held that the test is objective. Subjective preferences of the records subject are not relevant.

Q: What information must always be redacted?
A: Personal contact information (Ark. Code Ann. § 25-19-105(b)(13)), employee personnel number, marital status, information about dependents, dates of birth, social security numbers, medical information, identifying information about undercover law-enforcement officers (§ 25-19-105(b)(10)), driver's license number, insurance coverage, tax/withholding info, payroll deductions, and banking information. The opinion lists each of these with citations.

Q: What's the difference between a "personnel record" and an "employee evaluation record"? A: Personnel records are general employee records (like names, salaries, applications). Evaluation records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance on the job (Thomas v. Hall (2012)). Evaluation records are subject to a stricter four-part disclosure test under § 25-19-105(c)(1).

Q: How does the requester's motive affect the analysis? A: Generally, it does not. The FOIA does not allow custodians to consider why a person is asking. The exception is when the motive supplies an objective public interest the custodian had not previously identified; in that case, it can be considered.

Q: Is there a generalized "harassment" exception?
A: Footnote 19 says the Legislature has not included a generalized “harassment” exemption for otherwise disclosable employee-related records. The opinion does not analyze any particular pattern of requests.

Background and statutory framework

Arkansas FOIA's three-step disclosure test runs as follows. First, is the request directed to an entity subject to the act? Second, is the requested document a public record under Ark. Code Ann. § 25-19-103(7)(A)? Third, do any exceptions allow withholding? The first two are presumptions that apply to records held by a public entity (Pulaski Cty. v. Ark. Democrat-Gazette, Inc. (2007)).

For employee records, the FOIA recognizes two categories: personnel records and employee evaluation or job performance records. These are mutually exclusive. The AG has consistently defined personnel records as all employee-related records that are not evaluation records (Ops. Att'y Gen. 2018-121, 2015-072, 2012-001, 99-147; Watkins, Peltz-Steele & Steinbuch, The Arkansas Freedom of Information Act 202 (Arkansas Law Press, 6th ed. 2017)).

The personnel records test, under § 25-19-105(b)(12), exempts disclosure if it would constitute a "clearly unwarranted invasion of personal privacy." Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) set out the two-part balancing test. First, does the information trigger a greater than de minimis privacy interest? If not, disclosure is required. If yes, second, does the public interest outweigh the privacy interest?

The party resisting disclosure carries the burden of showing that privacy outweighs the public interest (Stilley v. McBride, 332 Ark. 306 (1998)). The test is objective; the records subject's subjective view is not relevant.

For basic employment information, the AG has consistently concluded that the public interest is substantial and any potential privacy interest does not outweigh it. The opinion cited Op. Att'y Gen. 2021-084, 2012-014, 2011-132, 2002-107, 96-205.

The opinion identifies § 25-19-105(b)(13) for personal contact information and § 25-19-105(b)(10) for identifying information about certain undercover officers. It cites prior AG opinions for the other listed redactions.

The AG limited her discussion to personnel records because, based on the information before her and without seeing the list, the requested information did not seem to constitute an evaluation record.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement identifying information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to seek AG opinion)
• 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
• Watkins, Peltz-Steele & Steinbuch, The Arkansas Freedom of Information Act 202, 207-08 (Arkansas Law Press, 6th ed. 2017)
• Ops. Att'y Gen. 2021-084, 2019-047, 2019-036, 2018-125, 2018-121, 2018-087, 2018-061, 2017-125, 2016-055, 2015-072, 2014-094, 2013-090, 2012-014, 2012-001, 2011-132, 2011-107, 2011-045, 2007-070, 2007-064, 2006-176, 2006-035, 2005-194, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2002-107, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-001, 97-368, 96-205, 94-198

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. 2022-022
May 9, 2022

Haroon A. Khan, Ph.D.

c/o Jeff Hankins, Vice President
Arkansas State University System
501 Woodlane, Suite 600

Little Rock, AR 72201

Dear Dr. Khan:

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 made pursuant to 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.

The correspondence this office received indicates that the Arkansas State University System (ASU System) office has received a request under the FOIA for “a list of the faculty lines that are being recommended to the Arkansas State University System Board of Trustees for elimination under the exigency recommendation by Chancellor [Chuck] Ambrose.” The list includes faculty members’ names; employment status, whether full or part time; rank; tenure status; department; and current salary. In the correspondence, the records custodian did not state how the record was classified. Nevertheless, the custodian determined that the list with the included information is subject to disclosure. You object to the disclosure of your information, although you do not state any rationale for your objection.

RESPONSE

Although I have not seen the record that the custodian intends to release, I believe—based on the representations made to me—that the custodian’s decision

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 » FAX (501) 682-8084 ARKANSASAG.GOV Haroon A. Khan, Ph.D.

c/o Jeff Hankins, ASU System
Opinion No. 2022-022

Page 2

to release the requested information is consistent with the FOIA and with the long- standing 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 ASU System, 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. For purposes of the FOIA, these items can usually

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. 2021).

2 Id.

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).

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

Haroon A. Khan, Ph.D.

c/o Jeff Hankins, ASU System
Opinion No. 2022-022

Page 3

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. Although the custodian did not classify the record at issue in this instance, I believe 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 or job performance records” that pertain to individual employees.8 Whether a particular record meets this definition is a question of fact that can only

insurance forms; performance evaluations; recommendation letters; disciplinary-action records; 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 (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. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. Based on the limited information before me, the requested information does not seem to constitute an employee- evaluation record. Consequently, I will not undertake any further discussion of that exemption.

8 See, e.g., Ops. Att'y Gen. 2018-121, 2015-072, 2012-001, 99-147; Watkins, et al., at 202. Haroon A. Khan, Ph.D.

c/o Jeff Hankins, ASU System
Opinion No. 2022-022

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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.”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 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.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 records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.15

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.

Haroon A. Khan, Ph.D.

c/o Jeff Hankins, ASU System
Opinion No. 2022-022

Page 5

Whether any particular personnel record’s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.16 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)(13));

• 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);

16 Ops. Att’y Gen. 2006-176, 2004-260, 2003-336, 98-001.
17 Ops. Att’y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107. 18 See Ops. Att’y Gen. 2019-047, 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). Haroon A. Khan, Ph.D.

c/o Jeff Hankins, ASU System
Opinion No. 2022-022

Page 6

• Any information identifying certain law enforcement officers currently
  working undercover (Ark. Code Ann. § 25-19-105(b)(10));

• 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).

III. Application.

This office has long and consistently opined that the release of basic public- employee information, such as their names, job positions, salaries, and the like 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, your employment status as full or part time, your rank and tenure status, department, and current 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 basic employment information such as this is substantial, and any potential privacy interest does not outweigh it.22

Sincerely,

LESLIE RUTLEDGE
Attorney General

20 E.g., Ops. Att’y Gen. 2021-084, 2012-014, 2011-132, 2002-107, 96-205.

21 See Op. Att’y Gen. 2012-014.

22 See Op. Att’y Gen. 2011-045 (and opinions cited therein).