Can a public agency release a list of state employees with names, salaries, and demographic data, but withhold birth dates?

Plain-English summary

The Arkansas Office of Personnel Management received a request for a 2013–2014 list of state employees with their names, jobs, agencies, race, gender, work status and location, employment dates, salaries, and birth dates. OPM planned to release the requested information except for birth dates. Some employees asked whether that decision complied with the Arkansas Freedom of Information Act (FOIA).

The AG concluded that both the release of the basic employment information and the withholding of birth dates were consistent with the FOIA. The opinion classifies the requested records as personnel records and applies the privacy balance described in Young v. Rice. It says the public interest in the specified basic employment information is substantial and is not outweighed by potential privacy interests. For birth dates, the AG found little public interest in the exact date and potential privacy risks from disclosure. The AG referred readers to Opinion No. 2007-064 for those risks; this opinion does not detail them.

OPM also said it would withhold the names of all commissioned Arkansas State Police officers, citing an undercover-officer exemption and Racop. The AG expressly declined to review that separate decision because it fell outside this opinion procedure. The opinion therefore gives no answer about whether those names should be withheld.

What this means for you

State records custodians

For the specific fields requested from OPM, the AG found release of names, titles, agencies, race, gender, full-time or part-time status, work location, hire and termination dates, and gross annual salaries consistent with the FOIA. The AG also found withholding the employees' birth dates consistent with the law. The opinion says a different record's classification requires review of that record itself.

People requesting state employee records

The opinion treats the requested basic employment information as disclosable personnel-record information. It distinguishes birth dates from the other requested fields because the public's interest in someone's exact date of birth is minimal compared with the potential privacy risks identified by the AG.

Employees named in the records

The opinion applies an objective privacy test; the employee's own objection does not decide whether the record is released. It reaches no conclusion about OPM's separate decision to withhold State Police officer names.

Common questions

Can OPM release state employees' names and salaries under this opinion?
Yes. The AG included names and gross annual salaries among the requested basic employment information whose release was consistent with the FOIA.

Why were birth dates treated differently?
The AG said the public may have a substantial interest in an employee's age, but the interest in the exact birth date is minimal and is outweighed by potential privacy risks. The opinion refers to Opinion No. 2007-064 for a discussion of those risks.

Did the AG approve withholding Arkansas State Police officer names?
No conclusion appears in this opinion. OPM reported that decision and its reliance on Racop, but the AG said the question was outside the scope of the requested FOIA opinion.

Background and statutory framework

The opinion analyzes the personnel-record privacy exception in Ark. Code Ann. § 25-19-105(b)(12) using Young v. Rice. It describes two steps: determine whether the information creates more than a minimal privacy interest; if it does, weigh that interest against the public interest in disclosure. The opinion notes that the balance favors disclosure and that the person resisting release bears the burden under the circumstances. Its first footnote distinguishes OPM's State Police decision from the employee-record question the AG could review under § 25-19-105(c)(3)(B)(i).

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-record privacy exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balance)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Ark. St. Police v. Racop, 2022 Ark. 17, 638 S.W.3d 1 (cited as OPM's reason, not decided by this opinion)

Source

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

Original opinion text

Opinion No. 2023-001
January 18, 2023
Lauren Ballard
Interim Chief Legal Counsel
Department of Transformation and Shared Services
501 Woodlane Street, Suite 203
Little Rock, AR 72201

Dear Ms. Ballard:

You have requested my opinion regarding a records custodian's decision under the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the custodian, 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.

You relate that the state Office of Personnel Management (OPM) has received a request under the FOIA for the following information about employees from the offices of the Governor and Lieutenant Governor and all state agencies and commissions from January 1, 2013 to December 31, 2014: "full legal name, title, department or agency, race, gender, full-time/part-time status, location, hire date, termination date, gross annual salary, and birth date." You report that OPM intends to release a record with the requested information except the employees' birth dates. Some employees have asked for my opinion on whether the custodian's decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decisions are consistent with the FOIA. This office has long and consistently opined that the release of basic public-employee information like what has been requested here must be evaluated as "personnel records," and that the release of such information, except for the employees' dates of birth, generally does not rise to the level of a clearly unwarranted invasion of personal privacy.

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 OPM, a public entity 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. Because I have no information to suggest that the presumption can be rebutted, the analysis proceeds to the third element: whether any exceptions preclude disclosure.

II. Exceptions to disclosure

Two groups of records are normally found in employees' personnel files: "personnel records" or "employee evaluation or job performance records." 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.

A. Definition of "personnel records"

While the FOIA does not define the term "personnel records," 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 requires one to review the record itself.

The custodian has classified the records at issue here as personnel records. In my opinion, and as this office has long opined, that decision is consistent with the FOIA.

B. Rules governing the disclosure of personnel records

A personnel record 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 has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing test, which takes place with "a thumb on the scale" in favor of disclosure, 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 minimal, then the thumb on the scale in favor of disclosure tips the balance to require disclosure. 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 the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

As this office has repeatedly opined, the release of the basic employment information requested here, a public employee's name, title, department or agency, race, gender, full-time/part-time employment status, location, hire date, termination date, and gross annual salary, does not rise to the level of a clearly unwarranted invasion of personal privacy. Under the Young v. Rice test, the public interest in basic employment information such as this is substantial and is not outweighed by any potential privacy interest. Therefore, because the first step of the test under Young v. Rice requires this information be disclosed, the custodian's decision is consistent with the FOIA.

The decision to withhold the employees' dates of birth is also consistent with the FOIA. As this office has repeatedly opined, while there may be a substantial interest in a public employee's age, the public interest in one's date of birth is minimal and is outweighed by potential privacy risks associated with disclosure. I will not detail those privacy risks here since the subjects of the records presumably do not object to this part of the custodian's decision and since Opinion No. 2007-064 explains those privacy risks. Therefore, because the second step of the Young v. Rice test requires dates of birth be withheld, this part of the custodian's decision is consistent with the FOIA.

Assistant Attorney General Ray Pierce prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

1 You also write that OPM has decided to withhold the names of all Arkansas State Police commissioned officers, under Ark. Code Ann. § 25-19-105(b)(10)(A), which exempts from disclosure the “identities of law enforcement officers currently working undercover....” You relay that OPM bases its decision on the Court’s reasoning in Ark. St. Police v. Racop, 2022 Ark. 17, 638 S.W.3d 1. Because this decision is beyond the scope of an Attorney General’s opinion under subdivision 25-19-105(c)(3)(B)(i), I will not address it here.

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) (holding that “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 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 See, e.g., Ops. Att’y Gen. 2015-072, 99-147; John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 202 (Arkansas Law Press, 6th ed., 2017).

8 See, e.g., Ops. Att’y Gen. 2012-014 (employee salaries), 2011-114 (employee names), 2011-044 (employee titles, full- or part-time employment status, and gender), 2010-148 (employee agencies), 2008-108 (hire and termination dates), 2007-070 (work location), and 2005-100 (race) (and opinions cited within each).

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.

16 See, supra, note 8.

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

18 See Op. Att’y Gen. 2007-064 (collecting opinions and cases).