Can a former employee block release of her personnel file because the records are old, or because they contain her signature?

Plain-English summary

Doris Anderson objected to the Arkansas Department of Labor and Licensing's planned redacted release of records from her personnel file. She had retired in 2015. Her two stated objections were that some records were older than the state's minimum retention period and that some contained her signature. The AG had not seen the records, so she could not decide whether a specific document or redaction complied with FOIA. She addressed the two objections and left record classification and the disclosure tests to the custodian.

The General Records Retention Schedule sets minimum holding periods, not destruction deadlines. The AG quoted its introduction: longer periods are allowed, records of permanent value may be kept indefinitely, and the schedule's retention rules apply to official versions rather than duplicates. If an agency still keeps a record and it qualifies as a public record, passage beyond the minimum period does not exempt it from FOIA; another applicable exemption may still matter.

On signatures, the AG said her office has generally found no clear basis in the Young v. Rice personnel-records test to require redacting images of public employees' signatures. On the limited facts presented, she saw no reason to depart from that position. Anderson did not raise an identity-theft or fraud objection. Footnote 33 quotes Opinion 2016-118, which describes a different record subject who had raised that concern.

What this means for you

If you are a former public employee

Records are not exempt merely because your agency kept them beyond the retention schedule's minimum period. A signature in a personnel record also does not, by itself, require redaction under the AG's general position. If you object to a particular release, the custodian still needs to classify the actual document and apply the relevant FOIA test. This opinion did not decide the status of Anderson's individual records.

If you process personnel-file requests

Do not treat the retention schedule as a maximum age for FOIA disclosure. For records still held by the agency, determine whether each is a public record, whether it is a personnel or employee-evaluation record, and whether an exception or required redaction applies. The AG did not review Anderson's file and placed that first review with the custodian.

If you manage records retention

The schedule quoted by the AG permits agencies to set longer periods and says some records should be kept permanently. It also says duplicates of an official version have no retention requirement under that schedule. Those rules concern how long records are held; the FOIA question arises when a responsive public record still exists.

If you request older agency records

The fact that a record survived its minimum retention period does not remove it from FOIA. The agency still applies the usual public-record definition and any applicable exemption. This opinion gives no ruling on the release of a specific document from Anderson's file.

Common questions

Q: Did the AG approve release of Anderson's entire personnel file? A: No. She had not seen the records and said she could not decide the releasability of a particular document or the need to redact a particular item.

Q: Must an agency destroy records when the retention schedule's period ends? A: No. The opinion quotes the schedule's minimum-period language and says it does not require destruction after that period.

Q: Are old records exempt from FOIA because they should have been destroyed? A: Age beyond a minimum retention period is not an exemption. A record still held by an agency remains subject to FOIA if it meets the public-record definition, unless another exemption applies.

Q: Must the custodian redact a public employee's signature? A: The AG said her office's general position finds no clear basis for requiring that redaction under the personnel-records balancing test. She saw no reason to depart from that position on the limited facts here.

Q: Did Anderson say her signature could be used for identity theft? A: No. The opinion states only that she did not believe her signature should be disclosed. Its identity-theft language is a quotation in footnote 33 from Opinion 2016-118 about someone else.

Q: Could other details in an old personnel record need redaction? A: Yes. The opinion lists examples, including personal contact information, personnel numbers, birth dates, and social security numbers. The custodian must inspect the actual records and apply the applicable test.

Background and statutory framework

The AG identifies the Department of Finance and Administration's authority for the General Records Retention Schedule in Ark. Code Ann. § 25-18-604. She quotes the schedule's distinction between minimum periods and longer retention and says kept public records remain subject to FOIA absent an exemption.

For employee records, the opinion explains that personnel records and employee-evaluation records have different disclosure tests. Personnel records use the Young v. Rice privacy balance. Evaluation records require the separate statutory conditions described in the opinion. Because the AG had not inspected Anderson's file, she did not assign any particular document to either category.

Footnote 33 cites Opinion 2015-011 for the general signature position and quotes Opinion 2016-118's discussion of another record subject's identity-theft concern. That quotation was context for prior AG guidance, not a description of Anderson's objection.

Citations

• A.C.A. § 25-18-604 (DFA records retention authority)
• A.C.A. § 25-19-105(b)(12), (13), (c)(1), (c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Ark. Att'y Gen. Ops. 2015-011, 2016-118 (signatures)
• Arkansas General Records Retention Schedule (DFA, 2006)

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. 2022-040

November 29, 2022

Ms. Doris Anderson

c/o Daniel Parker, Esq.

Arkansas Dept. of Labor & Licensing
900 West Capitol Ave., Suite 400
Little Rock, AR 72201

Dear Ms. Anderson:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the subject of 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 your former employer, now known as the Department of Labor and Licensing (the Department), has received a request under the FOIA for your personnel file. The Department has informed you that it has records it believes are responsive to the request and that it intends to release with certain redactions. You object to the Department releasing your records on the grounds that you retired from the agency in 2015 and that some of your personnel records are older than the Arkansas General Records Retention Schedule! requires such records be kept. You furthermore object on the grounds that some of the records contain your signature, which you do not believe should be subject to disclosure. You ask whether the custodian’s decision to release the records as redacted is consistent with the FOIA.

' Found at hitps://www.dfa.arkansas.gov/images/uploads/intergovernmentalServicesOffice/rec_ retention_schedule.pdf. The Department of Finance and Administration promulgated the state Records Retention Schedule in 2006 pursuant to the authority granted it in Ark. Code Ann. § 25- 18-604 (Supp. 2021).

323 CENTER STREET, SUITE 200 © LIL TLL ROCK. ARKANSAS 72201 TELEPHONE (501) 682-2007 + FAX (501) 682-8084 ARKANSASAG.GOV

Ms. Doris Anderson
Opinion No. 2022-040
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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 disclosable document. Accordingly, 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.

Notwithstanding the foregoing, however, your specific objection about the age of the records at issue is not a legally cognizable exemption to prevent the records’ disclosure under the FOIA in my opinion. Moreover, it has been the general stance of this office that there is no clear basis under the test regarding personnel records to require the redaction of images of a public employee’s signature from a disclosable record. Under the limited facts before me, I can see no reason to deviate from that general rule in this instance.

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 Department of Labor and Licensing, which is a public entity and is subject to the FOIA. Moreover, as it has been relayed to me, the request pertains to public records.” Because the records are held by a public entity, they are presumed to be

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).

Ms. Doris Anderson
Opinion No, 2022-040
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public records,’ although that presumption is rebuttable.’ Accordingly, given that I have no information to suggest that the presumption can be rebutted, the analysis procecds to the third element, that is, whether any exceptions preclude disclosure.

I]. 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.

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, Le., if they do not

‘constitute a record of the performance or lack of performance of official functions,” citing Op. Att’y Gen. 2005-095).

> 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 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. AtUy 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).

® 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 employce 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.”

Ms. Doris Anderson
Opinion No. 2022-040
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a. Personnel-records exception.

The first of the two most relevant potential exceptions is the one for “personnel records,” which the FOIA does not define. 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 docs 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 applics 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 claborated 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 docs 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

8 See, e.g., Ops. Att’y Gen. 2015-072, 99-147; Watkins, ef al., at 202.
° Ark. Code Ann. § 25-19-105(b)(12).

© 308 Ark, 593, 826 S.W.2d 252 (1992).

'l Watkins, ef a/., at 208.

'2 Young, 308 Ark. at 598, 826 S.W.2d at 255.

'3 Id,, 826 S.W.2d at 255.

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Opinion No, 2022-040
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circumstances, his privacy interests outweigh the public’s interests.!4 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:

e 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));

e Employee personnel number (Ops. Att’y Gen. 2014-094, 2007-070):

14 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

'5 Fg, Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, ef al., at 207.

'© Ops. Att’y Gen. 2006-176, 2004-260, 2003-336, 98-001.

"7 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. Atty 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 General Assembly 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).

Ms. Doris Anderson
Opinion No, 2022-040
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e Marital status of employees and information about dependents (Op. Att’y Gen. 2001-080);

e Dates of birth of public employees (Op. Att’y Gen. 2007-064); e Social security numbers (Ops. Att’y Gen. 2006-035, 2003-153); e Medical information (Op. Att’y Gen. 2003-153);

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

e Driver’s license number and photocopy of driver’s license (Ops. Att'y Gen. 2017-125, 2013-090);

e Insurance coverage (Op. Att’y Gen. 2004-167);

e Tax information or withholding (Ops. Atty Gen. 2005-194, 2003-385); e Payroll deductions (Op. Att’y Gen. 98-126); and

e Banking information (Op. Att’y Gen. 2005-194).

b. Employee-evaluation exception.

The second potentially relevant exception is for “employee evaluation or job performance records,” which the FOIA likewise docs not define.” But 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! This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.”

Additionally, some employee-related records constitute “mixed records,” i.c., records that constitute (1) more than one person’s evaluation, (2) at least one person’s evaluation and at least one other person’s personnel record, or (3) more

20] will refer to this group of records as “employee-evaluation records.”

*! Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att’y Gen. 2009-067, 2008-004. 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.

2 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

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than one person’s personnel record.?

Ifa document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);

2. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);

3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employcce (i.e., basis); and

4. The public has a compelling interest in the disclosure of the records
   in question (i.c., compelling interest).”4

As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But the leading commentators on the FOIA, referring to this office’s opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employce’s position within the agency. In short, a gencral interest in the performance of public employees should not be considered compelling, because that concern, at Icast theoretically, always exists. Ilowever, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the “compelling public interest” requirement.”

These commentators also note that “the status of the employee” or “his rank within the bureaucratic hierarchy” may be relevant in determining whether a

*3 See Op. Att’y Gen. 2020-037 (and opinions cited therein). 4 Ark. Code Ann. § 25-19-105(c)(1); Op. At’y Gen. 2008-065.

*5 Watkins, ef al., at 238-39 (footnotes omitted).

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Opinion No, 2022-040
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“compelling public interest” exists,?° which is always a question of fact that must be determined, in the first instance, by the custodian after considering all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.”’

III. Application.

Because I have not reviewed the actual records at issue, I am unable to definitively opine on whether the custodian’s decisions are consistent with the FOIA. It is the custodian’s duty in the first instance to properly classify the records and then apply the appropriate tests for disclosure.

However, it is my opinion that your objections to disclosure are not cognizable under the FOIA. First, you object to disclosure on account that the Department has kept the records beyond the date it was required to keep them under the state Records Retention Schedule. That objection is unavailing. As the introduction to the Schedule provides, the retention periods for the numerous kinds of records under the Schedule are the minimum retention periods.?? Such minimum retention periods “are not intended to prevent individual agencies from establishing longer retention periods for any of their records.”?? Moreover, and regardless of the minimum retention periods provided in the Schedule, “an agency may determine any of its records may be of permanent value to agency operations, may have external requirements for perpetual retention, or may be uscful for the study of history. Such records should be kept permanently.“° Finally, the retention periods apply only to official versions of a record. “Duplicates of the official

26 Id, at 237 (noting that “{a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”).

27 Cf. Op. Att’y Gen. 96-168; Watkins, ev a/., at 223.

°8 See Arkansas General Records Retention Schedule, found at htps://www.dfa.arkansas.gov/ images/uploads/intergovernmentalServicesOffice/rec_retention_schedule.pdf at 5.

29 Td.

30 Id.

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Opinion No, 2022-040
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version have no retention requirements under this schedule, even if the duplicates are found in different media.”*!

It is clear from the Records Retention Schedule that it sets time periods that an agency must keep records. It does not require an agency to destroy records after their minimum retention periods. And as long as a record is kept by an agency (and meets the other requirements to be considered a public record),°? it is subject to disclosure under the FOIA, absent an applicable exemption.

Second, your objection that your signature has not been redacted from the records is equally ineffective. This office has generally held that there is no clear basis for concluding that the Young v. Rice balancing test for personnel records requires the redaction of images of public employces’ signatures.*?> Under the limited facts before me, I can see no reason to deviate from that general rule in this instance.

Sincerely,
a are C4 op

LESLIE RUTLEDGE
Attorney General

a

Pas

"Id

• See supra n.2,

33 Op. Att’y Gen. 2015-011. See also Op. Att’y Gen. 2016-118 at n.17 (“I note here that one of your objections concerns the fact that some of the records contain images of your signatures, which you believe could potentially be used for nefarious purposes, such as identity theft or fraud. This office has previously opined that the balancing test for personnel records under Young likely does not require such redactions.”).