Under Arkansas FOIA, what can a sheriff's office redact from a deputy's personnel file in response to a public records request?

Plain-English summary

The Pulaski County records custodian planned to release most of Deputy Da'Vonti Armant's employment file with redactions and to withhold employee evaluations. Armant asked the Arkansas AG to review those decisions. The AG agreed with most of the custodian's choices but found that emergency contact information, FMLA change-of-status records showing absence dates, and beneficiary designations should be disclosed. A request for verification of employment was a personnel record rather than an evaluation record and should also be disclosed.

The AG approved redactions of Armant's phone number, address, personal email address, birth date, Social Security number, employee number, marital status, and dependent information. The correctly classified evaluation records remained withheld because Armant had not been suspended or terminated.

What this means for you

Records custodians

For this file, the AG distinguished personnel records from employee evaluations by asking whether the employer created the record to evaluate job performance. The verification-of-employment request did not detail performance, so it belonged with the personnel records. The opinion also approved some discrete personal-information redactions while rejecting the three other categories listed above.

Public employees and records requesters

A.C.A. § 25-19-105(c)(3)(B)(i) permits the custodian, requester, or subject of certain employee records to request an AG opinion on the planned release. The AG reviewed the unredacted file and proposed redactions here. The result turned on the content of these records, including the fact that the FMLA change-of-status forms merely recorded absence dates.

Common questions

Can the custodian withhold an entire employee evaluation file?
For Armant's file, yes. The opinion found that the correctly classified evaluations could be withheld because he had not been suspended or terminated, one necessary condition for disclosure under A.C.A. § 25-19-105(c)(1).

Why were the FMLA change-of-status records releasable?
The AG said these particular records "merely record the dates of the absence." It treated their release like the release of vacation or sick-leave records and found no clearly unwarranted invasion of privacy on those facts.

Why was the verification-of-employment request releasable?
It pertained to Armant but was not created by the employer to evaluate his performance. The AG classified it as a personnel record and found that the public interest in disclosure outweighed his privacy interest.

Which redactions did the AG reject?
Emergency contact information, FMLA absence-date records, and beneficiary designations for a retirement account and final paycheck. The AG addressed those items in this employment file; the opinion does not decide how records with other contents should be treated.

Background and statutory framework

Arkansas FOIA distinguishes personnel records under A.C.A. § 25-19-105(b)(12) from employee evaluation or job performance records under § 25-19-105(c)(1). The opinion quotes the evaluation-record test as records created by or at the employer's behest to evaluate the employee and detailing performance or lack of performance. The opinion also explains that an evaluation record may be released only when all four statutory conditions are met: suspension or termination, final administrative resolution, a record forming a basis for that decision, and compelling public interest.

Citations

• A.C.A. § 25-19-105(b)(12) (personnel records)
• A.C.A. § 25-19-105(c)(1) (evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG review request)

Source

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

Original opinion text

Opinion No. 2024-062
May 16, 2024
Deputy Da'Vonti A. Armant
Via e-mail only: [email protected]
Dear Deputy Armant:
You have requested an opinion from this office regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). 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 report that someone has made a FOIA request to Pulaski County for your employment file. The records custodian has classified the majority of your employment file as personnel records, and the custodian plans to disclose those records with redactions of your phone number, address, personal email address, date of birth, social security number, employee number, marital status, and information about dependents. The custodian has also redacted your emergency contact information, change-of-status records for an FMLA absence, and designations of beneficiary for your retirement account and final paycheck from these personnel records.

The custodian has classified the remaining records as employee evaluations. The custodian intends to withhold them from disclosure because you have not been suspended or terminated.

You have provided me with an unredacted copy of your employment file, as well as a redacted copy of the records that the custodian intends to release. You ask if the custodian's decisions are consistent with the FOIA.

RESPONSE
In my opinion, the custodian has correctly classified the personnel records and has properly redacted your phone number, address, personal email address, date of birth, social security number, employee number, marital status, and information about dependents. But the custodian's redactions of your emergency contact information, change-of-status records for an FMLA absence, and designations of beneficiary for your retirement account and final paycheck are inconsistent with the FOIA.

In addition, the custodian has properly classified the employee-evaluation records, except for the request for verification of employment. That request is better classified as a personnel record because it does not detail your performance or lack of performance on the job. As a personnel record, the request should be disclosed because the public's interest in it outweighs your privacy interest.

The custodian's decision to withhold the correctly identified employee-evaluation records is consistent with the FOIA.

DISCUSSION

1. General rules. 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 your employer, Pulaski County, which is a public entity subject to the FOIA. And the records at issue appear to be public records. Because these 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, I will focus on whether any exceptions prevent the documents' disclosure.

The FOIA contains two exemptions for two groups of documents 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 first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2. 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 that were not created by or at the behest of the employer to evaluate the employee.

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 the scale tipped in favor of public access," 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 records should be disclosed. 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, the employee's 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.

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. For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses.

3. Employee-evaluation records. The second relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court 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."

If a document qualifies as an employee-evaluation record, 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 employee (i.e., relevance); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

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 employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling because that concern, at least theoretically, always exists. However, 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 "[t]he status of the employee" or "his or her rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers 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 between employees and their employers.

4. Classification and disclosure of personnel records. "Personnel records" encompass many types of information found in an employment file: job titles, salary and payroll records, change-of-status records, pension and benefit records, records of sick leave and vacation time, requests for voluntary demotion, background investigations, and photographs of the employee. In this instance, the custodian has correctly classified these documents as personnel records because they relate to you but were not created by your employer to evaluate you.

A personnel record must be released when the public's interest in the record outweighs the employee's privacy interest in the document. Other than the redacted information, these records do not contain information that is of a private or intimate nature. Thus, the custodian's decision to release these documents is consistent with the FOIA.

5. Redactions of personnel records. The custodian has properly identified that some discrete pieces of information contained in the records are of a personal or intimate nature and have a greater than minimal privacy interest. The redacted information is your phone number, address, personal email address, date of birth, social security number, employee number, marital status, and information about dependents. The custodian has properly determined that disclosure of this information would be a clearly unwarranted invasion of privacy. So the custodian's decision to redact this information is consistent with the FOIA.

But the custodian has also redacted your emergency contact information, change-of-status records for an FMLA absence, and designations of beneficiary for your retirement account and final paycheck. This office has previously opined that disclosing emergency contact information is not a clearly unwarranted invasion of privacy. Similarly, this office has opined that releasing records of vacation time and sick leave is not a clearly unwarranted invasion of privacy. The change-of-status records for an FMLA absence merely record the dates of the absence. Thus, those records are not clearly unwarranted invasions of privacy.

Finally, the designations of beneficiary for your retirement account and final paycheck are not of a personal or intimate nature that they would have more than a de minimus privacy interest. Because your privacy interests in this information do not outweigh the public's interest in accessing it, that information should not be redacted.

6. Classification and disclosure of the request for verification of employment. Because this document pertains to you but was not created by or at the behest of your employer to evaluate you, it is properly classified as a personnel record. And because disclosure of these records would not constitute an unwarranted invasion of privacy, I believe the FOIA requires the release of the record.

7. Classification and disclosure of the employee evaluations. Because these records were created by or at the behest of your employer to evaluate you and because they detail your performance or lack of performance on the job, they are best classified as employee-evaluation records. The custodian's decision to withhold these records is consistent with the FOIA because you have not been suspended or terminated.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General