Can a public employee block release of her middle name from a personnel record under Arkansas FOIA?

Plain-English summary

A FOIA requester asked the Arkansas State Police for the names and salaries of employees who work behind a glass partition at Troop A's lobby, including specifically Amber Prichard. The custodian located one document showing Prichard's salary and five "Personnel Action Notice Forms" responsive to the request, and decided to release them with redactions for personal contact information, dependents, personnel number, marital status, date of birth, and SSN.

Prichard, as the subject of the records, asked the AG to review the release because she did not want her middle name disclosed.

Attorney General Tim Griffin concluded the custodian's decision was consistent with FOIA. The records were properly classified as personnel records (factual information about Prichard, not records created to evaluate her job performance). And the items the custodian decided not to redact (middle name, salary, job title, sex, race, education) are not subject to redaction under the Young v. Rice "clearly unwarranted invasion of personal privacy" standard.

The key principle: the privacy test is objective, not subjective. The fact that the subject of the records does not want them released is not a legal basis for withholding. A "mere desire to have your name removed" does not satisfy the test.

What this means for you

If you are a public employee whose personnel records have been requested

Based on this opinion, you cannot block release of your name (including middle name), salary, job title, sex, race, or education simply because you would prefer they stay private. The privacy test asks whether disclosure would be a "clearly unwarranted invasion of personal privacy" measured objectively, not whether you find disclosure unwelcome.

What does get redacted: personal contact info (phone, email, home address), personnel numbers, marital status, dependents, date of birth, social security number, driver's license number, insurance and tax information, payroll deductions, and banking information. Your custodian should already be applying those redactions before release.

If you have a more specific privacy concern (a documented stalking history, a sealed criminal record, a witness-protection situation), that is different. Those facts can support a "greater than minimal" privacy interest under the second step of the Young test. But just preferring privacy will not move the needle.

If you are a records custodian

The opinion is a clean restatement of the routine personnel-records playbook:

1. Classify the document. Is it a "personnel record" (kept about the employee, not created to evaluate them) or an "employee-evaluation/job-performance record" (created to evaluate)?
2. For personnel records, run Young v. Rice two-step privacy balancing. If privacy interest is minimal, release. If greater than minimal, weigh against public's interest in disclosure (with a thumb on the scale toward access).
3. Apply the standard redactions: SSN, DOB, contact info, marital status, dependents, banking, etc.
4. Ignore subject preferences. The test is objective.

If you are a FOIA requester

If a custodian is dragging their feet on releasing routine personnel data (name, salary, job title, education, hire date), this opinion is a clear citation. The AG has consistently said that those items are disclosable absent some specific, documented privacy concern that goes beyond preference.

Common questions

Q: I am a state employee. Can I keep my middle name out of a FOIA release?
A: No, not on the basis of preference alone. The AG concluded that wanting privacy is not, by itself, enough to invoke the "clearly unwarranted invasion" standard. The test looks at the public's interest in access against an objective privacy interest, not the subject's wishes.

Q: Will my salary be released?
A: Yes. Salary, job title, sex, race, and education have been routinely treated as disclosable personnel record information under decades of AG opinions cited here.

Q: What about my home address or phone number?
A: Those are explicitly redacted under A.C.A. § 25-19-105(b)(13). The custodian should remove them before release.

Q: What if I have a real safety concern, like I'm a victim of stalking?
A: That is a different inquiry. A documented, specific safety risk could support a "greater than minimal" privacy interest in the Young analysis, possibly outweighing the public's interest in disclosure of a particular field. Talk to your custodian and your agency counsel; bring documentation.

Q: Can the requester find out my date of birth, SSN, or banking info?
A: No. Those are categorically redacted under FOIA's privacy exemption. The custodian's redactions in this case (SSN, DOB, marital status, contact info, dependents, personnel number) are standard and proper.

Q: Does this rule apply to all Arkansas public employees, not just state police?
A: Yes. The personnel-records framework under A.C.A. § 25-19-105(b)(12) applies to records held by any public entity subject to FOIA: state agencies, school districts, municipalities, counties, public colleges, and so on.

Background and statutory framework

Arkansas FOIA divides employee files into two categories:

• Personnel records: records about the employee not created to evaluate performance. Released unless disclosure would be a "clearly unwarranted invasion of personal privacy" (A.C.A. § 25-19-105(b)(12)).
• Employee-evaluation/job-performance records: records created by or at the behest of the employer to evaluate the employee. Released only if there has been a final suspension or termination, the records were the basis for it, and there is a compelling public interest (A.C.A. § 25-19-105(c)(1)).

The personnel-records release test, Young v. Rice, has two steps:

1. Is the privacy interest greater than minimal?
2. If yes, does the public's interest in disclosure outweigh that privacy interest?

A "thumb on the scale" tilts the test toward disclosure. The custodian resisting disclosure carries the burden of showing the privacy interest is greater than minimal. Stilley v. McBride, 332 Ark. 306 (1998).

The Arkansas Supreme Court has accepted the AG's adoption of an objective standard: "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."

This opinion adds nothing new to the doctrine. It is a useful restatement and citation point for routine personnel-records cases.

Citations and references

Statutes:
- A.C.A. § 25-19-105(b)(12) (personnel records privacy exemption)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records four-element test)
- A.C.A. § 25-19-105(b)(13) (personal contact info redaction)
- A.C.A. § 25-19-105(c)(3)(B)(i) (subject's right to ask AG to review)

Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (Ark. 1992) (two-step privacy test)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (Ark. 1998) (custodian bears burden)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records)
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (Ark. 2007) (rebuttable presumption of public-record status)
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (FOIA broadly construed in favor of disclosure)
- Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466 (Arkansas Supreme Court has approved AG definition of employee-evaluation records)

Source

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

Original opinion text

Opinion No. 2024-073
August 9, 2024
Amber Prichard
Via email only: [email protected]

Dear Ms. Prichard:

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 a records request for personnel records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). This subdivision authorizes you to seek an opinion stating whether the custodian's decision regarding the release of those records is consistent with the FOIA.

A FOIA request was made to the Arkansas State Police ("ASP") for:

Names (First and Last) of all employees who would work behind the glass partition at the Arkansas State Police Troop A Lobby or Foyer. I am requesting all salaries of employees provided, especially Ms. Pri[]chard, along with hire date and start pay.

The custodian has determined that a document that indicates your current salary and five documents titled "Personnel Action Notice Form" are responsive to the request. The custodian indicates that she redacted information about your dependents and your contact information, personnel number, marital status, date of birth, and social security number.

You have indicated that you object to this release of the identified records because you do not want the requestor to know your middle name.

RESPONSE

In my opinion, the custodian correctly classified the records as personnel records. There is no FOIA exemption that allows custodians to redact middle names. And although redactions may be made to personnel records for "clearly unwarranted invasions of personal privacy," the mere fact that you do not want your middle name disclosed does not rise to that level. Further, the custodian's decisions to not redact information about your salary, job title, sex, race, and education are consistent with the FOIA.

DISCUSSION

1. General rules. A document must be disclosed in response to a FOIA request if (1) the request was directed to an entity subject to the FOIA, (2) the requested document is a public record, and (3) no exceptions allow the document to be withheld.

The first two elements appear to be met. The request was made to the ASP, 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, but that presumption is rebuttable. I have no information to suggest that the presumption can be rebutted here, so I will focus on whether any exceptions prevent the documents' disclosure.

For FOIA purposes, documents in a public employee's file can usually be divided into two mutually exclusive groups: "personnel records" and "employee evaluation or job performance records." Personnel records are records that pertain to an individual employee that were not created by or at the behest of the employer to evaluate the employee. Employee-evaluation and job-performance records, on the other hand, are 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.

2. Classification of the Documents. The custodian intends to disclose two types of documents: one document indicating your current salary and five forms titled "Personnel Action Notice Form." The information in both types of documents is about you, and neither type appears to have been created by the ASP to evaluate your performance. Instead, the documents contain objective information such as your name, salary, job title, sex, race, and education.

Therefore, it is my opinion that the custodian properly classified the documents as personnel records.

3. Potential Exemptions. The FOIA exempts personnel records from disclosure "to the extent that disclosure constitutes a clearly unwarranted invasion of personal privacy." To determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy, courts apply a two-step balancing test that "tip[s] in favor of public access." On one side of the scale is the public's interest in accessing the records; on the other, the individual's interest in keeping the records private. 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. The custodian resisting disclosure has the burden to show that the individual's privacy interest outweighs the public's interest.

This office has consistently opined that the names of public employees should be disclosed. As my predecessor said, a mere desire to have your name removed from a personnel record is not a "legally sufficient reason[] to redact your name from an otherwise releasable personnel record." That's because the balancing test is objective and not based on the subject of the request's subjective belief. Therefore, it seems that the custodian's decision to not redact your middle name is consistent with the FOIA.

Similarly, this office has long held that releasing personnel records that indicate salary, job titles, sex, race, and education is not a clearly unwarranted invasion of personal privacy. Again, it appears that disclosure under the FOIA is necessary, and I cannot conclude that the custodian has made an improper decision.

Finally, I note that I have not been provided a copy of the unredacted records, so I cannot determine whether the custodian properly redacted certain parts of the personnel records. The custodian did, however, indicate that redactions were made to five categories: information about your dependents and your contact information, personnel number, marital status, date of birth, and social security number. These types of redactions are proper.

Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General