When the Arkansas Department of Corrections releases a current or former employee's personnel file under FOIA, what specific information has to be blacked out before the file goes to the requester?
Subject
Whether the Arkansas Department of Corrections records custodian's decision to release Justin Delvalle's personnel records, with redactions, complied with the Arkansas Freedom of Information Act.
Plain-English summary
Justin Delvalle, the subject of records the Arkansas Department of Corrections planned to release, asked the AG to review the custodian's redaction plan. Under A.C.A. § 25-19-105(c)(3)(B)(i), the subject of certain employee records can ask for that review.
The AG agreed the records were correctly classified as "personnel records" rather than "employee-evaluation records," which means a different redaction test applies. Personnel records are open to the public except where disclosure would be a "clearly unwarranted invasion of personal privacy." Courts apply the Young v. Rice balancing test with a thumb on the scale for disclosure: the custodian asks first whether the privacy interest is more than minimal, and second whether public interest still outweighs it.
Even when a record is releasable in general, certain discrete fields have to come out. The AG ratified the custodian's existing redactions of social security number, personal contact information, date of birth, personnel number, banking and financial information, and driver's license number. But the AG also flagged additional items that had to be redacted before release: text on the "Arkansas Department of Corrections Employment Reference Consent and Release" form describing separation from employment; marital status on the "State of Arkansas Employee's Withholding Exemption Certificate"; the photocopied driver's license that recorded a "turned 21" date (which indirectly reveals the date of birth); and on the "Remuneration Statement" and "Employee's Withholding Certificate," net pay, withholdings, deductions, and retirement benefits. Gross salary stays public.
The AG also noted some redactions that may have been wrong. The custodian had blacked out a "position number" without specifying whether it was a job position number (releasable) or an employee personnel number (exempt). And redactions on the "Offender Photograph," "Inmate Synopsis," and "Visitor List" forms had no stated basis. Without seeing the unredacted versions, the AG could not confirm whether those redactions were defensible.
What this means for you
Records custodians at Arkansas state agencies
Treat this as a redaction punch list. The AG has been issuing very similar opinions, and the categories that must be redacted are stable: personal contact info, employee personnel/identification numbers, marital status, dependents, date of birth, social security numbers, driver's license numbers, insurance coverage, tax info or withholdings, payroll deductions, net pay, banking information, and "intimate financial detail." Gross salary is not on the list, because the public has a legitimate interest in what state employees are paid.
The trickier judgment calls are the indirect-disclosure traps. A photocopy of a driver's license that prints the holder's "turned 21" date discloses the date of birth even with the actual birthdate field blacked out. Be willing to redact dates and incidental data that mathematically reveal otherwise-exempt information.
Document the basis for every redaction. The AG can't bless a redaction whose rationale isn't on the record. Where you redact something with a marker, make sure the redaction can't be read through the paper or revealed by a scan, and use a method that preserves an audit trail (an "exempt as personnel-number" annotation in the margin, for example).
Records subjects (state employees whose files have been requested)
You can ask the AG to second-guess your employer's redaction plan under A.C.A. § 25-19-105(c)(3)(B)(i). The opinion is advisory, but custodians take it seriously, and a favorable opinion is use if you ultimately litigate.
You don't get to keep your gross salary private. If you work for the Arkansas state government, your salary is a public record. What you do get is privacy on net pay, withholdings, deductions, retirement benefits, banking information, social security number, driver's license, date of birth, marital status, dependents, and personal contact information.
FOIA requesters
If you receive a personnel file with broad redactions, push back on anything that isn't on the established exempt-categories list. Position numbers, gross salary, training certifications, dates of hire, employment contracts, and general resignation letters are public. If the custodian redacted them anyway, you can ask the AG for review or sue under the FOIA.
Anyone working with employee personnel files
Build separation-of-employment language into a category you redact reflexively. The AG repeatedly treats it as marital-status-adjacent personal information that must come out under § 25-19-105(b)(12)'s "clearly unwarranted invasion of personal privacy" standard.
Common questions
Q: Why is gross salary public but net pay private?
Gross salary is what the state pays you. It's a budget line item, and the public has an interest in knowing how taxpayer money is spent. Net pay reveals what's left after your withholdings, garnishments, child support, voluntary deductions, and benefits elections, all of which carry real privacy interests. The AG has consistently drawn the line at gross.
Q: Why redact the date a person turned 21 on a driver's license copy?
Because date of birth is exempt and the "turned 21" date discloses it by simple arithmetic. The AG looks at indirect disclosure, not just the literal redacted field. If a record gives a reader a clear path to compute exempt information, the path itself has to be blocked.
Q: I'm the subject of records and I think they're embarrassing. Can I block release?
No. The AG points out that the subject's own opinion of whether disclosure is "unwarranted" is irrelevant. The privacy test is objective. The custodian and (if the dispute escalates) a court look at whether the average person would find disclosure clearly unwarranted, weighing the public interest with a thumb on the scale for openness.
Q: Position number was redacted. Should the requester push to get it?
If the position number is a job position number (e.g., a budgeted line on the agency's organizational chart), it's releasable. If it's the employee's personal employee-ID/personnel number used for computer security, it's exempt. The custodian should be able to tell which one is being redacted, and a follow-up request can ask for a clear designation.
Q: How does this differ if the records are "employee evaluations" instead of personnel records?
Employee-evaluation/job-performance records have a much harder release test: the employee must have been suspended or terminated, the proceeding must be administratively final, the records must have formed a basis for the decision, and there must be a "compelling public interest" in disclosure. Pre-discipline evaluations of a current employee are typically withheld even if requested. The Delvalle records were classified as personnel records, so the looser personal-privacy test applies.
Background and statutory framework
The Arkansas FOIA, codified at A.C.A. §§ 25-19-101 through -110, presumes that public records are open. The two principal exemptions for personnel-related records are at A.C.A. § 25-19-105(b)(12) ("personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy") and A.C.A. § 25-19-105(c)(1) (the four-part test for employee-evaluation/job-performance records).
The Arkansas Supreme Court fleshed out the personnel-record balancing test in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Step one asks whether the information is of a personal or intimate nature giving rise to more than a de minimis privacy interest. Step two, only reached if step one is satisfied, asks whether the public interest in disclosure outweighs the privacy interest. The "thumb on the scale for disclosure" comes from Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). The party resisting disclosure carries the burden.
A.C.A. § 25-19-105(f) explicitly contemplates redaction: even when a record as a whole is releasable, exempt fields within it must be removed before release. The AG opinions cited in this opinion catalog the recurring discrete-field redactions: personal contact information; employee personnel/identification numbers; marital status; dependents and children; dates of birth; social security numbers; driver's license numbers; insurance coverage; tax info and withholdings; payroll deductions; net pay; banking info; and "intimate financial detail."
Under A.C.A. § 25-19-105(c)(3)(B)(i), the requester, the custodian, or the subject of certain employee-related records can request an AG opinion on whether the custodian's release decision is consistent with the FOIA. The AG reviews the unredacted records when possible and issues an advisory opinion that custodians and courts treat as persuasive guidance.
Citations
- A.C.A. § 25-19-103(7)(A) (definition of public record)
- A.C.A. § 25-19-105(b)(11) (computer security/personal identification numbers exemption)
- A.C.A. § 25-19-105(b)(12) (personnel records / clearly unwarranted invasion of personal privacy)
- A.C.A. § 25-19-105(b)(13) (personal contact information of public employees)
- A.C.A. § 25-19-105(c)(3)(B)(i) (subject's right to request AG review)
- A.C.A. § 25-19-105(f) (redaction of exempt portions)
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
- Pulaski County v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
Source
Original opinion text
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-055
July 15, 2025
Justin Delvalle
Email: [email protected]
Dear Mr. Delvalle:
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 stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.
According to correspondence you forwarded to our office, the Arkansas Department of Corrections has received FOIA requests for your "personnel records." The custodian has determined that the records are subject to release, with certain redactions. You have requested that I review the custodian's decision to determine whether it is consistent with the FOIA.
RESPONSE
In my opinion, the custodian's decision to release the records as redacted is partially consistent with the FOIA. The records the custodian intends to release are properly classified as personnel records, and the custodian has correctly determined that they are subject to release with redactions. But I have identified several additional pieces of information that must be redacted before the records can be released, as well as information that may be improperly redacted.
DISCUSSION
- 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 Arkansas Department of Corrections, 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. Given that I have no information to suggest that the presumption can be rebutted here, I will focus on whether any exemptions prevent the documents' disclosure.
For purposes of the FOIA, employees' personnel files normally contain two distinct groups of records: "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.
The test for whether these two types of documents may be released differs significantly. Thus, the custodian must first decide whether a record meets the definition of either a "personnel record" or an "employee-evaluation or job-performance record" and then apply the appropriate test for that record to determine whether the record should be released under the FOIA. 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.
- 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 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 privacy 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 interest. 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 pieces of information that must be redacted, such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses); employee personnel numbers or identification codes; marital status of public employees; information about children and dependents; dates of birth of public employees; social security numbers; driver's license numbers; insurance coverage; tax information or withholdings; payroll deductions; net pay; banking information; and other financial "records that would divulge intimate financial detail."
- Redactions to the records. The custodian has properly redacted certain discrete pieces of information that are exempt from release, including your social security number, personal contact information, date of birth, personnel number, banking and financial information, and driver's license number. However, I have identified several additional pieces of information that must be redacted before the records can be released. First, the text regarding your separation from employment should be redacted from one of the documents titled, "Arkansas Department of Corrections Employment Reference Consent and Release." Similarly, your marital status should be redacted from the form titled, "State of Arkansas Employee's Withholding Exemption Certificate." Your personnel records also contain several photocopies of your driver's license. One of these photocopies lists the date on which you turned 21. This information indirectly reveals your date of birth and should be redacted. Finally, additional redactions must be made to documents titled, "Remuneration Statement" and "Employee's Withholding Certificate." While your gross salary is not exempt from disclosure under the FOIA, this office has consistently opined that a public employee's net pay, withholdings, deductions, and retirement benefits are all exempt from release under the FOIA because their disclosure would constitute a clearly unwarranted invasion of personal privacy. The custodian must redact all of this information from your personnel records before they can be released.
Additionally, some nonexempt information may have been improperly redacted from the records. There are several instances in which the custodian has redacted your "position number," but I am uncertain as to what this number refers. If this number refers to the job position number, that information is disclosable. But if it refers to your employee personnel number, that information is not subject to release. There are also redactions on forms titled, "Offender Photograph," "Inmate Synopsis," and "Visitor List." The basis for these redactions is unclear, but because I have not reviewed the unredacted documents, I cannot say whether the custodian's decision to make these redactions is consistent with the FOIA.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General