Can a state agency release a roster of Executive Branch employees with names and salaries, but not their personnel ID numbers?

Plain-English summary

Arkansas's Office of Personnel Management (OPM) received a FOIA request for an electronic list of Executive Branch employees from January 1, 2019, to the time of the request, and monthly afterward. The requester sought names, employee identification codes, titles, departments or agencies, race, sex, full-time or part-time status, location, hiring and termination dates, civil service status, and gross annual salary. OPM planned to release the requested information except employee identification codes. It told the AG it had no records responsive to the civil-service-status field, a point the AG expressly left outside this opinion.

The AG classified the records as personnel records. Under the Young v. Rice test, disclosure is barred only if it would be a clearly unwarranted invasion of personal privacy. The AG found a substantial public interest in the basic employment information at issue and said any potential privacy interest did not outweigh it. She approved releasing the names, titles, agencies, race, sex, work status and location, employment dates, and salaries.

Withholding the employee identification codes was also consistent with FOIA. The AG said personnel numbers presumably provide access to computerized data and cited the exemption for personal identification numbers used for computer security. The opinion separately lists information that may need redaction from an otherwise releasable record, including dates of birth and personal contact information. That list does not mean those fields were part of this request.

What this means for you

If you handle public-employee data requests

For a roster with the fields OPM was asked to provide, this opinion supports releasing the basic employment fields and withholding employee identification codes. Check the actual record for other information before release. The opinion lists items such as dates of birth, personal contact information, social security numbers, and information identifying certain currently undercover officers as requiring redaction when present. OPM said it had no responsive civil-service-status records; the AG did not review that part of its response.

If you request state employee data

This opinion supports access to the particular roster fields the AG reviewed, including salary, work location, and employment dates. Expect personnel numbers to be withheld. If you request civil service status, this opinion does not establish whether OPM has a responsive record; it says OPM reported that none existed for this request.

If you are an employee named in a roster

The AG applied an objective privacy test to the basic employment information. An employee's own view that release is invasive does not determine the result. The opinion also says requester motive is generally irrelevant, while footnote 19 allows considering a motive that reveals an objective public interest the custodian had not seen before.

Common questions

Q: Why did the AG approve withholding employee ID codes? A: She said personnel numbers presumably provide access to computerized data. FOIA exempts personal identification numbers used for computer security functions, and the opinion cites Ark. Code Ann. § 25-19-105(b)(11).

Q: Did the AG say dates of birth could be released with this roster? A: No. Dates of birth were not among the requested fields. The opinion's general redaction list includes public employees' birth dates and cites a prior AG opinion for that item.

Q: Does the opinion discuss undercover-officer information? A: Only in its general redaction list. It identifies information about certain currently undercover law-enforcement officers as something to redact, citing Ark. Code Ann. § 25-19-105(b)(10). It does not analyze a particular officer or cite Racop.

Q: Did the AG decide whether OPM could withhold civil service status? A: No. OPM reported having no responsive record for that field. Footnote 1 says the resulting denial was outside the scope of this AG opinion.

Q: Does a requester's purpose affect disclosure?
A: Generally no. The opinion says identity or motive is ordinarily irrelevant. Footnote 19 adds that motive may be considered when it supplies an objective public interest the custodian had not previously identified.

Background and statutory framework

The AG classified the requested roster as personnel records under Ark. Code Ann. § 25-19-105(b)(12). She described the two-step Young v. Rice privacy test, then concluded that the public interest in the listed employment information was substantial and outweighed any potential privacy interest. The opinion did not say every listed field had only a minimal privacy interest.

The opinion distinguishes personnel records from employee-evaluation records, which have a different disclosure test. It also identifies specific information that must be redacted from an otherwise releasable record. The application section concerns the requested roster fields and personnel numbers; the other redaction examples are general guidance.

The reason given for withholding personnel numbers is the computer-security identification-number exemption in § 25-19-105(b)(11). The AG stated that these numbers presumably provide access to computerized data.

Citations

• A.C.A. § 25-19-105(b)(11), (b)(12), (c)(1), (c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-032

August 10, 2022

Lauren Ballard, Esq.

Dept. of Transformation & Shared Services
501 Woodlane Street, Suite 201

Little Rock, AR 72201

Dear Ms. Ballard:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the attorney for the custodian 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 relates that the state Office of Personnel Management (OPM) has received a request under the FOIA for an electronic listing of all employees of the Arkansas Executive Branch from January 1, 2019, to the present, and monthly thereafter, with the following fields for each employee: “full legal name, unique employee identification code, title, department or agency, race,
[sex], full-time/part-time status, location, hire date, termination date, civil service status, and gross annual salary.” It is my understanding that OPM intends to release a record with the requested information except the employee identification codes.1 You write that an unspecified number of employees have objected to the release of their information. You ask whether the decision to release a record with the requested information, save for the employee identification codes (that is, personnel numbers), is consistent with the FOIA.

1 You also relate that OPM has no responsive records with respect to “civil service status,” so that part of the request will also be denied. That decision is beyond the scope of an opinion from this office under the FOIA and therefore will not be addressed herein.

Lauren Ballard, Esq.

Dept. of Transformation & Shared Servs.
Opinion No. 2022-032

Page 2

RESPONSE

The custodian’s decision to release records with the requested information, except for the employees’ personnel numbers, is consistent with the FOIA, in my opinion.

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 state Office of Personnel Management, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records.2 Because the records are held by a public entity, they are presumed to be public records,3 although that presumption is rebuttable.4 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.5 For purposes of the FOIA, these items can usually

2 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).

3 Id.

4 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).

5 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

Lauren Ballard, Esq.

Dept. of Transformation & Shared Servs.
Opinion No. 2022-032

Page 3

be divided into two mutually exclusive groups: “personnel records”6 or “employee

evaluation or job performance records.”7 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, it is apparent that the records at issue are properly classified as personnel records. I will, therefore, limit my discussion to records of that type.

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 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

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).

6 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.”

7 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.”

8 See, e.g., Ops. Atty Gen. 2015-072, 99-147; Watkins, et al., at 202.

9 Ark. Code Ann. § 25-19-105(b)(12).

Lauren Ballard, Esq.

Dept. of Transformation & Shared Servs.
Opinion No. 2022-032

Page 4

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

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

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.

17 Ops. Att’y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

Lauren Ballard, Esq.

Dept. of Transformation & Shared Servs.
Opinion No. 2022-032

Page 5

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);

• 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

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).

Lauren Ballard, Esq.

Dept. of Transformation & Shared Servs.
Opinion No. 2022-032

Page 6

• 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 records that reflect a public employee’s name, title, department or agency, race, sex, full-time or part-time status, work location, hire date, termi- nation date, and gross annual salary amounts to a “clearly unwarranted invasion of personal privacy” under the above balancing test. In my opinion, it does not. It has long been the opinion of this office that the public interest in basic employ- ment information such as this is substantial, and any potential privacy interest does not outweigh it.22

Moreover, the decision to withhold the employees’ unique employee identification codes (that is, their “personnel numbers”) is similarly consistent with the FOIA. As pointed out above, this office has maintained that public employee personnel numbers are exempt from disclosure. This is because these numbers presumably provide access to computerized data, and records containing “personal identifica- tion numbers” used for computer security functions are specifically exempt from disclosure under the FOIA.23

Sincerely,

LESLIE RUTLEDGE
Attorney General

20 E.g., Ops. Att’y Gen. 2021-084, 2012-014, 2011-132, 2002-107, 96-205. 21 See Ops. Att’y Gen. 2022-022, 2012-014. 22 See Op. Att’y Gen. 2011-045 (and opinions cited therein).

23 Ark. Code Ann. § 25-19-105(b)(11). See also Op. Att’y Gen. 2018-064.