Should a city redact a public employee's net pay (after withholdings) from FOIA-released payment records?
Plain-English summary
Fort Smith received an FOIA request for "a copy of all payments [the City Administrator] has received from the City of Fort Smith from July 1, 2022 to July 1, 2023." The City Administrator (the records custodian) asked the AG whether net salary payment information should be excluded or redacted before release. The AG: yes, redact.
The framework. Public-employee compensation records are personnel records under FOIA, governed by the Young v. Rice balancing test (clearly unwarranted invasion of personal privacy). The Arkansas Supreme Court applied a "thumb on the scale" in favor of disclosure. The custodian first checks whether the privacy interest is more than minimal; if yes, the custodian then weighs that interest against the public's disclosure interest.
What stays public. Gross salary, payroll information, names, job positions, and "the like" are all public records subject to FOIA disclosure. The AG cited multiple prior opinions (Op. 2019-072, 2018-122, 2018-064, 1996-205, 1994-198) holding that gross salary disclosure is not a "clearly unwarranted invasion of personal privacy." Public employees' compensation is funded by taxpayers and is subject to public scrutiny.
What gets redacted. Net pay (gross minus deductions) reveals personal financial choices and is exempt. Specifically:
- Net pay (the bottom-line amount paid to the employee).
- Tax withholdings (federal, state, local, FICA).
- Total payroll deductions or specific deductions.
- Insurance coverage selections.
- Retirement benefits or contributions.
- Banking information (direct deposit account numbers).
- Any other "intimate financial detail."
Why the distinction. Gross salary is a public employer's compensation decision; it reveals only what the employer pays. Net pay is the employee's personal financial profile: how much they save for retirement, what insurance they elect, how much tax they have withheld (which can reveal marital status, dependents, or claimed exemptions), and where they bank. Those choices are private even when the gross is public.
What this means for you
Records custodians
When you respond to FOIA requests for public-employee compensation records, your default disclosures include gross salary, position, hours, and any allowances or stipends that are part of the public-record compensation structure. Default redactions include net pay, tax withholdings, deductions, insurance elections, retirement contributions, and banking information.
Practical method: redact a pay stub or compensation summary by blocking out the deduction lines and the net-pay line. Show gross pay clearly. If you have any doubt about whether a specific line is "intimate financial detail," err toward redacting and flag for the requester to ask if needed.
The redaction method itself matters. § 25-19-105(f)(3) requires the custodian to indicate the amount of information deleted. Use a visible blackout (not whiteout) so the requester can see where redactions occurred and how much was removed. (Op. 2023-078 develops the redaction-method requirements in detail.)
Municipal administrators and HR managers
Make sure your payroll system can output reports that show only the public-disclosable fields (gross pay, position, dates) without the private fields (deductions, net pay, banking). A custom report saves time and reduces inadvertent disclosure of exempt information.
When public employees are asked about their compensation, the gross salary number is what is on the public record. Net pay is private to the employee. This distinction is worth communicating to staff.
FOIA requesters and news media
Expect to receive gross salary information for public employees. Net pay, withholdings, and benefit elections are properly withheld. If you really need net pay (to compute take-home costs of certain policy decisions, for example), focus instead on the public elements: gross salary plus the public benefit framework (which insurance plans the city offers, which retirement system, etc.).
If a custodian releases all payment records without redacting net pay or banking information, that is also a problem (it discloses information the FOIA actually exempts). The right response is partial redaction, not full release.
Public employees
Your gross salary is a public record. That is true at every level of public employment. Your net pay and the deductions that produce it are private. Those numbers (and your banking information) should be redacted before any FOIA release.
If you discover your custodian released your full pay stub including deductions, raise it with HR. The cure is unusual: the records have already been released. But knowing what was disclosed and what was not is important.
News media
Stories about public-employee compensation should focus on gross salary plus benefit framework. Comparing net pay across employees does not provide useful information (since net depends on personal choices) and runs against the FOIA exemption for that data.
Common questions
My city is required to publish my gross salary, but I'm uncomfortable with that. Can I challenge it?
Generally no. Gross salary is a fundamental public record under Arkansas FOIA. Public employees accept this as part of the employment relationship.
What about retirement contributions made by the city as employer match?
Past AG opinions treat retirement-related deductions and benefit information as exempt under the balancing test (citing the "intimate financial detail" rule). Some general benefit-framework information (which retirement system the city participates in, what matching rates apply) is public; specific employee-by-employee contribution amounts are typically redacted.
Can FOIA reveal whether an employee is enrolled in family health coverage?
The AG opinions treat insurance coverage information as exempt. The general benefit structure (what plans the city offers, what the city contributes to coverage) is public, but individual enrollment elections and dependent counts are not.
What about overtime, bonuses, and per-diem payments?
These are typically gross compensation amounts and are public records under the same logic that makes gross salary public. They reveal what the city is paying, not the employee's personal financial choices.
My custodian wants to release my pay stub with banking information. Is that legal?
No. Banking information is treated as exempt under multiple AG opinions (e.g., Op. 2005-194). Banking-information disclosure would expose employees to financial risk and is a clearly unwarranted invasion of privacy. The custodian should redact account numbers and routing numbers before release.
Does the size of the salary matter? What about an extremely high or low salary?
Public interest in disclosure can be heightened for certain compensation patterns (very high salaries, large bonuses). But the gross-vs-net distinction does not change. A $300,000 city administrator gross salary is public; the administrator's net take-home pay is not.
Background and statutory framework
A.C.A. § 25-19-105(b)(12) protects personnel records from disclosure when release would be "a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), articulates the balancing test. The "thumb on the scale" tips in favor of disclosure; the custodian first determines whether the privacy interest is more than minimal, then balances against public interest if so.
The AG has consistently characterized public-employee salary, payroll, and benefit information as personnel records (Op. 2022-039, 1998-126, etc.). And the AG has consistently distinguished gross salary (releasable) from net pay and the underlying deductions (exempt). The personal identification number exemption in A.C.A. § 25-19-105(b)(11) supports the broader rule that personally identifying financial details are exempt.
The list of exempt categories in this opinion (net pay, tax withholdings, payroll deductions, insurance coverage, retirement benefits, banking information, intimate financial detail) summarizes the AG's accumulated position from prior opinions: 2018-064, 2018-015, 2002-043, 1998-126 (net pay); 2005-194, 2003-385 (tax info/withholdings); 1998-126 (deductions); 2004-167 (insurance); 2002-043 (retirement); 2005-194 (banking); 2005-194, 1998-126, 1995-242, 1995-110, 1994-235, 1991-093, 1987-422 (intimate financial detail).
Citations
- A.C.A. § 25-19-105(b)(11) (personal identification numbers)
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism)
- Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992)
- Ark. Att'y Gen. Ops. 2022-039, 2019-072, 2018-122, 2018-064, 2018-015, 2015-072, 2005-194, 2004-167, 2003-385, 2002-043, 1998-126, 1996-205, 1995-242, 1995-110, 1994-235, 1994-198, 1991-093, 1987-422, 99-147
Source
Original opinion text
Opinion No. 2023-085
September 15, 2023
Mr. Carl E. Geffken, City Administrator
City of Fort Smith, Arkansas
623 Garrison Avenue
Fort Smith, Arkansas 72901
Dear Mr. Geffken:
You have requested my opinion regarding the Arkansas Freedom of Information Act
("FOIA"). Your request, which is made as the custodian of the records, is based on A.C.A.
§ 25-19-105(c)(3)(B)(i). This law 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 say that someone has submitted a FOIA request for "a copy of all payments [you, the
City Administrator,] have received from the City of Fort Smith from July 1, 2022 to July
1, 2023. You ask whether "net salary payments" should be excluded or redacted.
RESPONSE
In my opinion, "net salary payment" information must be excluded or redacted.
DISCUSSION
For purposes of FOIA, two distinct groups of records are normally found in employees'
personnel files: personnel records or employee-evaluation records. The test for whether
these two types of records may be released differs significantly.
1. Personnel records. While the FOIA does not define the term "personnel records," this
office has consistently opined that personnel records are all records that pertain to an
individual employee and were not created by or at the behest of the employer to evaluate
the employee. This office has consistently opined that records reflecting nonelected
public employee salary, payroll, or benefit information are classified and evaluated as
"personnel records." Therefore, in my opinion, the records here are best classified as
personnel records.
A personnel record is open to public inspection 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 record
is of a personal or intimate nature such that it gives rise to a greater than minimal 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 minimal privacy interest, then
the custodian must determine whether that interest is outweighed by the public's interest
in disclosure. Even if a record, when considered as a whole, meets the test for disclosure,
it may contain certain pieces of information that must be redacted before disclosure.
2. Application. This office has consistently opined that salary information, including
"gross salary," is not exempt from disclosure under the FOIA because this type of
information is not a "clearly unwarranted invasion of personal privacy." But because the
disclosure of some of the information contained in your records would be a "clearly
unwarranted invasion of personal privacy," that information should be redacted or withheld
from disclosure.
Specifically, this office has consistently opined that "net pay" is exempt from disclosure.
Likewise, the following information concerning deductions from gross pay are also exempt
from disclosure:
- Tax information or withholdings;
- Payroll deductions or total deductions;
- Insurance coverage;
- Retirement benefits;
- Banking information; and
- Other financial "records that would divulge intimate financial detail."
You, as the custodian, will need to review your records to redact any of the foregoing
exempt information before disclosure.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General