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 (OPM) received an FOIA request for a 2013-2014 listing of all employees from the Governor, Lieutenant Governor, and all state agencies and commissions. The requested fields were full legal name, title, department or agency, race, gender, full-time/part-time status, location, hire date, termination date, gross annual salary, and date of birth. OPM planned to release everything except the dates of birth. Several employees objected. OPM's counsel asked the AG to confirm.
The AG's answer: yes, the planned release is consistent with the FOIA, including the decision to withhold birth dates.
The framework, applied repeatedly in prior AG opinions:
- Basic public-employee information is a personnel record under A.C.A. § 25-19-105(b)(12).
- The Young v. Rice (308 Ark. 593) balancing test applies. Step 1: is the privacy interest more than minimal? Step 2: if yes, does the privacy interest outweigh the public interest in disclosure? The scale is tipped in favor of disclosure.
- For names, titles, departments, race, gender, full/part-time status, location, hire/termination dates, and gross salary: the privacy interest fails step 1 (de minimis). Disclosure required.
- For dates of birth: the privacy interest exceeds the threshold (DOB is the linchpin for identity theft and fraud). The public interest in age generally is real, but the public interest in the actual DOB beyond age is minimal. Step 2 produces redaction.
The AG also flagged a separate decision OPM made (withholding the names of all Arkansas State Police commissioned officers under § 25-19-105(b)(10)(A) and Ark. State Police v. Racop, 2022 Ark. 17) as outside the scope of this opinion procedure. The AG opinion-request statute (§ 25-19-105(c)(3)(B)(i)) covers employee-related records exemptions, not the undercover-officer exemption.
The opinion confirms a long-standing line of AG opinions treating these specific data fields as releasable. Cited prior opinions: 2012-014 (salaries), 2011-114 (names), 2011-044 (titles, full/part-time, gender), 2010-148 (agencies), 2008-108 (hire/termination dates), 2007-070 (location), 2005-100 (race), 2007-064 (DOB redaction).
What this means for you
State agency FOIA custodians
When you receive an FOIA request for an employee listing, separate the data fields into three categories:
- Routinely releasable: name, title, department, agency, work location, hire date, termination date, race, gender, full/part-time status, gross annual salary. Disclose absent specific other concerns.
- Routinely redacted: date of birth, social security number, personal contact information, marital status and dependents, medical information, driver's license number, insurance coverage, tax information, payroll deductions, banking information, employee personnel/identification numbers (treated as exempt as personal identification numbers under § 25-19-105(b)(11)).
- Requires case-by-case analysis: any field not on either list, especially anything with mixed-record implications.
For categories 1 and 2, the analysis is essentially mechanical at this point given the volume of consistent prior opinions.
Public records requesters and journalists
Use the routinely-releasable list as your baseline expectation. If a custodian refuses any of those fields, the burden is on the agency to articulate a privacy interest under Young v. Rice that exceeds the de minimis threshold and outweighs the public interest. That burden is hard to carry for these specific fields given the AG opinion line.
For DOB requests, expect redaction. If you only need age, ask for age or year of birth as alternatives. Year-of-birth provides age within a year and carries less identity-theft risk; some agencies will release it where they redact full DOB.
State employees who are subjects of these listings
Your name, title, salary, work location, and similar basic employment information are treated as public information when held by your state employer. You cannot block their release under Arkansas FOIA. If you have a specific privacy concern (for example, an officer working undercover, a domestic-violence-protected address, a confidential informant), there are narrow statutory paths (§ 25-19-105(b)(10) for undercover officers; § 25-19-105(b)(13) for personal contact information) but no general "I prefer privacy" exemption.
News reporters covering state government
This opinion confirms that bulk employee-data requests are viable and routinely producible. For investigative pieces on agency staffing, salary patterns, hire/termination patterns by demographic, or location patterns, the FOIA framework supports requesting comprehensive listings. Two practical points:
- The agency does not have to create a record that does not exist (§ 25-19-105(d)(2)(C)). Request data the agency already maintains.
- Personnel/identification numbers are exempt under prior AG interpretation, so do not expect them in the export.
Watchdog groups and audit organizations
Comprehensive employee data supports salary equity analyses, demographic representation studies, and turnover analyses. The disclosure framework does not depend on the requester's purpose, and motive cannot be a basis for denial.
Custodians dealing with subject objections
Subject objections to release of basic employment data are not legally cognizable under Arkansas FOIA. Document the objection and the analysis, but proceed with release per the framework. The Stilley v. McBride rule (332 Ark. 306) makes the test objective, not subjective.
Common questions
Why aren't dates of birth releasable when names and salaries are?
Different privacy analysis. Names and salaries reveal essentially nothing of personal/intimate nature. DOB is a linchpin for identity theft and fraud, so the privacy interest is greater than minimal, and the public interest in DOB specifically (vs. age) is limited.
Can I get the DOB if I really need it?
Generally no via FOIA from the state agency. You may have other paths (court records for litigants, voter registration data subject to its own statutes, etc.).
Are personnel/identification numbers releasable?
No. AG opinions treat these as exempt because they function as access keys to computerized systems. § 25-19-105(b)(11) exempts personal identification numbers.
What about Arkansas State Police officer names?
Withheld under § 25-19-105(b)(10)(A) for currently undercover officers. The Racop case (2022 Ark. 17) supports broader withholding. The exact scope of the redaction is not within the AG-opinion-procedure of § 25-19-105(c)(3)(B)(i), so the AG declined to address it here. Consult the Racop decision and the agency's specific application.
Can the agency charge for this kind of bulk export?
The FOIA permits the agency to charge actual costs of copying and providing the records, but not for staff time creating a new export not already available. Check § 25-19-105(d).
What if I want only a subset of agencies?
Specify the scope in your request. Custodians can produce subsets if the data structure supports it; if not, you may receive the full export.
Is this opinion binding?
AG opinions are persuasive only. But this opinion sits on top of a long line of consistent prior opinions and a clear statutory framework. The disclosure rule for these data fields is well-settled.
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)(A): exemption for undercover law enforcement officer identities.
- A.C.A. § 25-19-105(b)(11): personal identification numbers exempt.
- A.C.A. § 25-19-105(b)(12): personnel records exception, balancing test.
- A.C.A. § 25-19-105(b)(13): personal contact information exempt.
- A.C.A. § 25-19-105(c)(1): employee evaluation records exception.
- A.C.A. § 25-19-105(c)(3)(B)(i): AG opinion request procedure.
Key cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992): two-step balancing test for personnel records.
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007): rebuttable presumption of public-record status.
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998): test is objective; subject's view is irrelevant.
- Ark. State Police v. Racop, 2022 Ark. 17, 638 S.W.3d 1: undercover officer name redactions.
Prior AG opinions on specific data fields:
- 2012-014: salaries.
- 2011-114: names.
- 2011-044: titles, full/part-time status, gender.
- 2010-148: employee agencies.
- 2008-108: hire and termination dates.
- 2007-070: work location.
- 2005-100: race.
- 2007-064: DOB redaction.
- 2014-094, 2007-070: personnel number exempt.
Citations
- A.C.A. § 25-19-103(7)(A) (public record)
- A.C.A. § 25-19-105(b)(10)(A) (undercover officer exemption)
- A.C.A. § 25-19-105(b)(12) (personnel records exception)
- A.C.A. § 25-19-105(c)(1) (employee evaluation records)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request)
- 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. 2023-001
January 18, 2023
Lauren Ballard
Interim Chief Legal Counsel
Department of Transportation 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.
[Footnote: 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.]
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.
GRIFFIN
Attorney General