Can the state release a list of executive branch employees with names, salaries, and demographic data, while withholding personnel ID numbers?
Plain-English summary
The state Office of Personnel Management (OPM) received an FOIA request for an electronic listing of all Arkansas Executive Branch employees from January 1, 2015 through December 31, 2018. Requested fields: full legal name, unique employee identification code, title, department or agency, race, gender, full-time/part-time status, location, hire date, termination date, civil service status, and gross annual salary. OPM intended to release a record with the requested information except the employee identification codes. Several employees objected. OPM's counsel asked the AG.
The AG's answer: yes, the planned release is consistent with the FOIA, including the decision to withhold employee identification codes (personnel numbers).
The framework is the same as in subsequent Op. 2023-001:
- Basic public-employee information is a personnel record under A.C.A. § 25-19-105(b)(12).
- Young v. Rice (308 Ark. 593) two-step balancing test applies. Public interest in basic employment data is substantial; privacy interest is de minimis.
- Withhold birth dates, social security numbers, personal contact information, marital status, dependents, medical information, undercover-officer identities, driver's license, insurance, tax/withholding, payroll deductions, banking, and personnel/employee identification numbers.
The novel point in this opinion: personnel/employee identification numbers are exempt under § 25-19-105(b)(11), which exempts "personal identification numbers" used as access keys to computerized systems. AG opinions consistently apply this rule to employee numbers because they presumably enable computer access.
OPM also planned to withhold:
- Records about "civil service status" because no responsive records existed (no analysis required).
- Names of all Arkansas State Police commissioned officers under § 25-19-105(b)(10) and Ark. State Police v. Racop, 2022 Ark. 17. The AG found this decision outside the scope of the AG opinion procedure under § 25-19-105(c)(3)(B)(i).
The opinion confirms that requester motives are generally irrelevant under Arkansas FOIA, citing the standard line of opinions, and that there is no general "harassment" exemption.
What this means for you
State agency FOIA custodians
Three reliable rules from this opinion plus its sibling Op. 2023-001:
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Release the basic-data fields (name, title, department, race, gender, full/part-time, location, hire/termination, salary). The Young v. Rice analysis is settled.
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Withhold the personnel/employee identification number. § 25-19-105(b)(11) treats it as a personal identification number for computer security purposes.
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Withhold dates of birth (Op. Att'y Gen. 2007-064), social security numbers, personal contact information (§ 25-19-105(b)(13)), and the other items listed in this opinion.
For the Arkansas State Police undercover-officer redaction (§ 25-19-105(b)(10)), consult Racop and the agency's specific application; that issue is outside the AG-opinion procedure under § 25-19-105(c)(3)(B)(i), so do not expect AG guidance through that path.
Public records requesters and journalists
Plan your data requests to align with what is releasable. Bulk Executive Branch employee data is producible. The agency does not have to create a record that does not already exist (§ 25-19-105(d)(2)(C)), so request data that maps to existing exports.
If you need the personnel ID numbers for record-linking purposes (e.g., joining datasets across agencies), they will not be released. Use other join keys (name plus department plus hire date is often sufficient, with caveats for common names).
State employees who are subjects of these listings
Your basic employment data is public when held by your employer. Objections based on personal preference, fear of harassment, or distaste for the requester are not legally cognizable. The "harassment exemption" you might wish for does not exist in Arkansas FOIA.
If you have a specific exemption-eligible status (undercover officer, domestic-violence-protected address, etc.), work with your agency on the proper exemption procedure.
Civil service and HR administrators
Build standardized export templates that include the releasable fields and exclude the exempt fields. Mark personnel/employee ID numbers as exempt by default. The standardization saves analysis time on each request.
Watchdog groups and audit organizations
This opinion supports comprehensive Executive Branch employee data analysis. Demographic representation studies, salary equity analyses, and turnover analyses across agencies are well-supported by this disclosure framework.
News reporters covering state government
This is the second of two paired opinions (with Op. 2023-001) confirming bulk-data releasability. Use them together to push back on agencies that hesitate to release standard fields.
Common questions
Why are personnel/employee ID numbers exempt?
A.C.A. § 25-19-105(b)(11) exempts "records containing the home addresses, personal telephone numbers, social security numbers, employer or insurance identifying information, ...and personal identification numbers...." The personnel ID number is treated as functionally a personal identification number that enables access to computerized state records.
What is the difference between this opinion and Op. 2023-001?
The 2022-039 opinion concerns Executive Branch employees from 2015-2018 and includes employee ID codes. The 2023-001 opinion concerns Governor/Lt. Governor/agency employees from 2013-2014 and includes dates of birth. Both apply the same Young v. Rice framework. Together they confirm the standard list of releasable and redactable fields.
What about "civil service status"?
OPM had no responsive records on civil service status, so no FOIA analysis was needed. The request for that field was simply unproducible. If your agency does have civil-service-status data, it would be analyzed under the same personnel-records framework.
What about Arkansas State Police officer names?
Withheld under § 25-19-105(b)(10) for currently undercover officers, with broader reading post-Racop. The exact scope is outside the AG opinion procedure. Check the agency's specific application and Racop.
Can I get a date range different from the request?
Yes, but the agency does not have to construct exports it does not already maintain. Request what the agency keeps.
Can the requester's purpose change the analysis?
Generally no. Arkansas FOIA is requester-blind. Subjective motives are irrelevant. (Op. 2014-094 and others.) The narrow caveat: if the motive supplies an objective public interest the custodian had not previously seen, that public interest can be considered. But denial based on motive is improper.
Is there a harassment exemption?
No. The General Assembly has not seen fit to create one. Custodians cannot deny requests on harassment grounds.
Background and statutory framework
Statutory framework:
- A.C.A. § 25-19-103(7)(A): public record definition.
- A.C.A. § 25-19-105(b)(10): undercover officer exemption.
- A.C.A. § 25-19-105(b)(11): personal identification numbers exempt.
- A.C.A. § 25-19-105(b)(12): personnel records exception.
- A.C.A. § 25-19-105(b)(13): personal contact information exempt.
- A.C.A. § 25-19-105(c)(1): employee evaluation records.
- A.C.A. § 25-19-105(c)(3)(B)(i): AG opinion request.
- A.C.A. § 25-19-105(d)(2)(C): no obligation to create records.
Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992): personnel records balancing.
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007): rebuttable presumption.
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998): objective test.
- Ark. State Police v. Racop, 2022 Ark. 17, 638 S.W.3d 1: undercover officer redactions.
Prior AG opinions on personnel ID exemption: 2014-094, 2007-070, 2018-064.
Prior AG opinions on requester motive: 2019-036, 2018-125, 2018-087, 2018-061, 2014-094, 2012-014, 2011-107, 2019-047.
Prior AG opinions on releasable fields: 2021-084, 2022-022, 2012-014, 2011-132, 2002-107, 96-205, 2011-045.
Citations
- A.C.A. § 25-19-105(b)(10), (11), (12), (13) (FOIA exemptions)
- A.C.A. § 25-19-105(c)(1), (c)(3)(B)(i), (d)(2)(C)
- 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)
- Ark. State Police v. Racop, 2022 Ark. 17, 638 S.W.3d 1
Source
Original opinion text
Opinion No. 2022-039
November 7, 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, 2015 to December 31, 2018, with the following fields for each employee: "full legal name, unique employee identification code, title, department or agency, race, gender, 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. You write that several 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.
[Footnote: You also list two other groups of records that OPM does not intend to release. The first group consists of records relating to "civil service status." You state that OPM has no responsive records with respect to "civil service status," so that part of the request will be denied. The second group consists of those records containing the names of all Arkansas State Police commissioned officers. Relying on Ark. State Police v. Racop, 2022 Ark. 17, 638 S.W.3d 1, you reason that all officers' names should be withheld to protect undercover law enforcement officers' identities, which are exempt from disclosure under Ark. Code Ann. § 25-19-105(b)(10). Both of these decisions are beyond the scope of an opinion from this office under the FOIA and therefore will not be addressed herein.]
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. 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.
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. 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."
While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.
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. 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. 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. 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.
Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 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. 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. 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.
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
- 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," and that the release of such information generally does not rise to the level of a clearly unwarranted invasion of personal privacy. At issue here is whether disclosing records that reflect a public employee's name, title, department or agency, race, gender, full-time or part-time status, work location, hire date, termination 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 employment information such as this is substantial, and any potential privacy interest does not outweigh it.
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 identification numbers" used for computer security functions are specifically exempt from disclosure under the FOIA.
Sincerely,
LESLIE RUTLEDGE
Attorney General