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

Someone made a FOIA request to Pulaski County for the employment file of Deputy Da'Vonti Armant. The records custodian classified the file in two buckets: personnel records (planned for release with redactions) and employee-evaluation records (planned to be withheld in full). Deputy Armant, the subject of the records, asked the AG to review whether the redactions and withholdings matched FOIA.

The AG's bottom line: the custodian got most of it right, but redacted three categories that should have been released, and misclassified one document that should have been disclosed.

What the AG signed off on:
- Phone number, address, personal email, date of birth, social security number, employee number, marital status, and dependent info: properly redacted as a "clearly unwarranted invasion of personal privacy."
- Employee evaluations: properly withheld in full because Armant had not been suspended or terminated, so the four-prong evaluation-disclosure test was not met.

What the AG flagged as wrong:
- Emergency contact information: should be released. Prior AG opinions have consistently treated this as not a privacy invasion.
- Change-of-status records for an FMLA absence: should be released because they only show dates of absence, not medical condition.
- Beneficiary designations for retirement account and final paycheck: should be released because there is no greater than de minimis privacy interest in the names of beneficiaries.
- Verification-of-employment request: should be classified as a personnel record (not an evaluation record) and released, because it does not detail performance.

What this means for you

Records custodians

Lock in the redaction list of personal-information fields (A.C.A. § 25-19-105(b)(13) covers personal phone, personal email, and home address for certain employees, plus the Young v. Rice "clearly unwarranted invasion" balancing test for the rest). Stop redacting these:

• Emergency contacts. The AG has said multiple times now (Ops. 2000-306, 99-040) that this is not a privacy invasion.
• FMLA change-of-status records when they only show dates of absence. If they include medical detail, redact the medical detail. If they show only dates, release them.
• Beneficiary designations on retirement accounts and final paychecks. Beneficiary names are not personal or intimate information.

When you classify a document, ask: was this created by or at the request of the employer to evaluate the employee, and does it detail performance or lack of performance on the job? If yes to all three, it is an evaluation record. If no on any prong, it is a personnel record. A request for verification of employment is not an evaluation record.

HR managers

The Armant opinion is a useful template for what to redact and what to release in a typical sworn-officer file. Build a redaction policy off it: redact the listed personal-information fields, release the named exceptions (emergency contacts, FMLA dates without medical content, beneficiaries), and apply the Young v. Rice two-step balancing test for anything else.

Public employees who are subjects of a FOIA request

Under A.C.A. § 25-19-105(c)(3)(B)(i), you can ask the AG to review whether the custodian's planned release matches FOIA. That is what Armant did here. You get a written opinion within a fairly tight statutory timeline, and you can use it to push back on overdisclosure or underdisclosure. The AG noted that the subject's preference is irrelevant to the analysis: the test is objective.

FOIA requesters and journalists

If you ask for an officer's employment file and the agency hands you a heavily redacted version, the redactions you can challenge:
- Emergency contact information should be on the released copy
- FMLA dates (not the medical reason) should be on the released copy
- Beneficiary designations should be on the released copy
- Any document the agency calls an "evaluation" but that does not actually evaluate performance (e.g., a verification-of-employment request) is misclassified

The bigger withhold, the actual evaluations, requires proof of suspension or termination plus a "compelling public interest" plus the records being the basis for the discipline. Without all four, the agency holds them back.

Attorneys representing public employees

If your client is the subject of a FOIA request, get the unredacted file and the proposed redactions. Then file a § 25-19-105(c)(3)(B)(i) request for AG review. The Armant opinion shows how the AG walks the file item by item.

Common questions

Why are emergency contacts releasable but home addresses not?
The AG distinguishes them based on the employee's privacy interest. Home addresses (along with personal phone and personal email) get express statutory protection under A.C.A. § 25-19-105(b)(13) for certain employees. Emergency contact information is the name and phone of someone the employer should call in a crisis. Past AG opinions have not found a meaningful privacy invasion in releasing it.

FMLA usage is medical. Why is it releasable?
The opinion draws a careful line. If the change-of-status record only shows the dates of absence, it is treated like vacation or sick leave records, which the AG has said are releasable. If the record shows the medical condition or details of the illness, that is a privacy invasion and gets redacted. The custodian should look at the actual content.

What is the four-prong evaluation-disclosure test?
Under A.C.A. § 25-19-105(c)(1), evaluation records can only be released if all four are met:
1. The employee was suspended or terminated
2. There has been a final administrative resolution of that proceeding
3. The records formed a basis for the suspension/termination decision
4. The public has a compelling interest in disclosure

If any prong fails, the records stay sealed.

What counts as a "compelling public interest"?
Watkins on Arkansas FOIA lays out three factors the AG uses: nature of the infraction (especially if it involves violations of public trust or gross incompetence), existence of public controversy related to the agency, and the employee's position within the agency. Higher-ranking employees with serious misconduct linked to a public controversy are most likely to satisfy this prong.

The custodian called something an "evaluation" but it's just a verification of employment form. What now?
The AG addressed exactly this. A request for verification of employment does not detail performance. It is therefore a personnel record, not an evaluation record. As a personnel record with no greater than de minimis privacy interest, it should be released.

Does the subject's objection to release matter?
No. The Young v. Rice balancing test is objective. The fact that the subject considers release a privacy invasion is irrelevant.

Background and statutory framework

The two FOIA personnel-record exemptions. Arkansas FOIA distinguishes between two mutually exclusive groups of employee-related records:

• "Personnel records" under A.C.A. § 25-19-105(b)(12). All employee-related records that were not created by or at the behest of the employer to evaluate the employee. Open to inspection except where disclosure would constitute "a clearly unwarranted invasion of personal privacy."
• "Employee evaluation or job performance records" under A.C.A. § 25-19-105(c)(1). 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. The Arkansas Supreme Court adopted this definition in Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392, and the Court of Appeals confirmed in Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471.

The personnel-record balancing test. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Arkansas Supreme Court), set the two-step balancing approach: (1) does the information give rise to a greater than de minimis privacy interest, and (2) if so, does that interest outweigh the public's interest in disclosure. The scale tips in favor of public access. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Arkansas Supreme Court), placed the burden of resisting disclosure on the person claiming privacy.

The evaluation-record disclosure test. All four prongs of A.C.A. § 25-19-105(c)(1) must be met: (1) suspension or termination, (2) finality, (3) relevance, and (4) compelling public interest.

Personal-information protection. A.C.A. § 25-19-105(b)(13) shields personal phone numbers, personal email, and home addresses for certain public employees.

Discrete redactions inside otherwise releasable documents. A.C.A. § 25-19-105(f) authorizes the custodian to redact specific pieces of information even when the underlying document is releasable.

Subject-of-records review. A.C.A. § 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject ask the AG for an opinion on whether the planned release is consistent with FOIA.

Public records definition. A.C.A. § 25-19-103(7)(A) defines public records as writings or data "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." Records held by a public entity are presumed to be public; the presumption is rebuttable per Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007).

Citations

• A.C.A. § 25-19-103(7)(A) (definition of public record)
• A.C.A. § 25-19-105(b)(12) (personnel-records exemption)
• A.C.A. § 25-19-105(b)(13) (personal phone/email/address protection)
• A.C.A. § 25-19-105(c)(1) (employee-evaluation exemption and four-prong test)
• A.C.A. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)
• A.C.A. § 25-19-105(f) (discrete redactions)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (Court of Appeals confirms definition)
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (presumption of public-record status; rebuttable)
• Watkins et al., THE ARKANSAS FREEDOM OF INFORMATION ACT (6th ed. 2017)

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