Are city civil-service commissioners' personal email addresses and personal phone numbers exempt from a FOIA request?

Plain-English summary

Someone made a FOIA request to the City of Conway for "all email contact information for all current Civil Service Commissioners" and "all phone contact information for all current Civil Service Commissioners." Conway's commissioners are appointed by city council, are unpaid, and have no city-issued email or phone. Only their personal addresses and phone numbers were responsive. The city decided to withhold them under A.C.A. § 25-19-105(b)(13) (the personal-contact-information exemption for nonelected government employees) and asked the AG to confirm.

The AG agrees with the outcome (withhold) but for a different reason. The (b)(13) exemption applies to "nonelected" government "employees." Civil-service commissioners meet the "nonelected" half (they are appointed) but probably do not meet the "employees" half:
- They are appointed, not hired.
- They receive no salary.
- The city does not control the details of their work performance.

Black's Law Dictionary defines "employee" as someone who works in the service of another under a hire contract where the employer controls the details of work performance. The Arkansas Supreme Court applied a similar test in Baxter County Newspapers v. Medical Staff of Baxter General Hospital (1981), holding a doctor with admitting privileges was not a "public employee." Civil service commissioners are governmental officials, not employees. So (b)(13) probably does not apply.

But the personnel-records balancing test in (b)(12) does. Personnel records (records pertaining to an individual that are not created by or at the behest of the employer to evaluate the employee) are subject to the Young v. Rice (1992) two-step balancing test:
1. Does the information give rise to a greater than de minimis privacy interest?
2. If yes, is the privacy interest outweighed by the public interest in disclosure?

The AG has previously held that records pertaining to elected and appointed officials, not just employees, can be "personnel records." So the commissioners' personal email and phone numbers are personnel records subject to the (b)(12) balancing test.

Result: still exempt. The AG cites prior opinions concluding that personal email addresses are generally exempt under the personnel-records balancing test (Op. 2004-225) and unlisted personal phone numbers are generally exempt (Ops. 97-199, 95-242, 90-335). Individuals have a real privacy interest in their personal contact information, and the public typically has little interest in it as such. The custodian can override that conclusion with case-specific facts showing public interest, but no such facts were presented here.

What this means for you

If you are a records custodian (city, county, school, state)

Two takeaways:

1. Distinguish "employee" from "appointed official" before reaching for § 25-19-105(b)(13). That exemption is narrower than it looks. It covers only nonelected employees of state, municipal, school, or county government. Volunteer board or commission members, even if appointed, are usually not employees. Reach for the personnel-records balancing test in (b)(12) instead.

2. Personal email and phone numbers almost always lose the balancing test against disclosure. Prior AG opinions establish a presumptive privacy interest in personal contact information. Unless the requester offers a specific factual basis for public interest in this person's contact information (some indication of misconduct that the contact information is needed to investigate, for example), the records get withheld.

If you are a board or commission member worried about your private contact information becoming public

The personnel-records balancing test under (b)(12) protects your personal phone, personal email, and home address from generic FOIA requests. The custodian still has to apply the test, but the AG has consistently come out on the side of withholding personal contact information when the requester offers no specific public-interest reason.

If you are a FOIA requester

If you actually need contact information for a board member, work email and work phone are presumptively releasable; personal email and personal phone are not. If a commissioner has only personal contacts (no city-issued email or phone), you may not get them through FOIA without articulating a specific public interest. Be ready to explain why the public's interest in this person's personal contact information outweighs their privacy.

If you are a journalist

Same conclusion as above. Generic "give me all the emails and phones" requests will lose. Targeted requests tied to a specific public interest, especially around alleged misconduct or accountability, fare better. The Young v. Rice balancing test is fact-specific.

If you are a city attorney advising a client

Read the (b)(13) language carefully. The exemption requires both "nonelected" and "employees." Volunteer or honorary board members typically fail the second prong. Reach for the (b)(12) balancing test as the primary protection for unpaid appointees. The AG has been consistent on this point for over two decades.

Common questions

What is the difference between A.C.A. § 25-19-105(b)(12) and (b)(13)?
(b)(13) is a categorical exemption: personal contact information of nonelected state, municipal, school, or county employees is not subject to release. (b)(12) is the personnel-records balancing test: personnel records are subject to release except when disclosure would be a "clearly unwarranted invasion of personal privacy," which requires custodians to weigh privacy against public interest under Young v. Rice.

Why is a civil-service commissioner not an "employee" of the city?
Black's Law Dictionary and Baxter County Newspapers (1981) treat employment as requiring a hire contract and employer control over work performance. The commissioners here are appointed (not hired), unpaid, and the city does not control their work. They are appointed officials, not employees.

If they are not employees, are they still subject to the personnel-records exemption?
Yes. The AG's office has consistently held that personnel records can include records about appointed and elected officials, not just employees, because the underlying privacy interest is the same. AG Opinion 2004-003 set out this position; AG Opinion 2011-094 confirmed it.

Will my personal email or personal phone number always be exempt?
The presumption is yes. The AG has consistently applied the Young v. Rice balancing test to favor exemption when the requester offers no specific public-interest justification. Specific public-interest facts (an investigation, a documented allegation, a need to verify a contact) can flip the balance.

Can I subpoena what FOIA does not provide?
Sometimes. The exemption is from the records-disclosure statute, not from a court's subpoena power in litigation. Different rules govern subpoenas, and discovery in a lawsuit can reach material that FOIA exempts.

What about the work email of a commissioner who has one?
The AG has previously held that work email addresses are generally subject to disclosure under FOIA. If the commissioner has a city-issued email, that email is presumptively a public record.

Background and statutory framework

A.C.A. § 25-19-105(b)(13) exempts: "[p]ersonal contact information, including without limitation home or mobile telephone numbers, personal email addresses, and home addresses of nonelected state employees, nonelected municipal employees, nonelected school employees, and nonelected county employees contained in employer records, except that the custodian of the records shall verify an employee's city or county of residence or address on record upon request."

A.C.A. § 25-19-105(b)(12) is the personnel-records exemption: personnel records are open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

Definition of "employee." Black's Law Dictionary defines an "employee" as "[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance."

Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital (1981). The Arkansas Supreme Court held a doctor with admitting privileges at a county hospital was not a "public employee" for purposes of the FOIA executive-session exemption. The case is the touchstone for distinguishing employees from independent appointees in the FOIA context.

Young v. Rice, 308 Ark. 593 (1992). The two-step balancing test for personnel records:
1. Does the information give rise to a greater than de minimis privacy interest?
2. If yes, is the privacy interest outweighed by the public interest in disclosure?

The scale is "tipped in favor of public access." Stilley v. McBride, 332 Ark. 306 (1998), holds the burden is on the person resisting disclosure.

Personal email exemption precedent. AG Opinion 2004-225 holds that work emails are subject to disclosure but personal emails are generally exempt under the (b)(12) balancing test.

Personal phone number exemption precedent. AG Opinions 97-199, 95-242, 90-335 hold that unlisted or unpublished personal phone numbers are generally exempt.

Records about elected and appointed officials as personnel records. AG Opinion 2004-003 and Opinion 2011-094 confirm the exemption is about personal privacy, not just employee status, and so applies to officials as well.

Citations

Statutes:
- A.C.A. § 25-19-103 (FOIA definitions)
- A.C.A. § 25-19-105 (exemptions; including (b)(12) personnel records and (b)(13) personal contact information)

Cases:
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981)

Other AG opinions referenced:
- 2004-003, 2004-225, 2011-094, 97-199, 95-242, 90-335

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-113
November 14, 2025
Charles Finkenbinder
Conway City Attorney
1234 Main Street
Conway, Arkansas 72034

Dear Mr. Finkenbinder:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made on behalf of the custodian of 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.

You report that someone made a FOIA request to the City of Conway for "[a]ll email contact information for all current Civil Service Commissioners" and "[a]ll phone contact information for all current Civil Service Commissioners." In your correspondence, you explain that civil service commissioners "are not elected but rather are appointed by the city council for specific terms of years," that they "are not paid a salary for their service as commissioners," and that the city does not issue city cell phones or city email addresses to commissioners. Thus, only the commissioners' personal email addresses and personal phone numbers would be responsive to this request.

The custodian has determined that the commissioners' personal email addresses and personal phone numbers are exempt from disclosure under A.C.A. § 25-19-105(b)(13), which exempts from disclosure the personal contact information of certain nonelected government employees, including municipal employees. You ask for my opinion on whether the custodian's decision is consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision to withhold the requested information is correct, but not for the reason provided. Although Conway's civil services commissioners are appointed, rather than elected, they probably do not qualify as "employees" for purposes of A.C.A. § 25-19-105(b)(13). But their personal email and phone contact information is still likely to be exempt from release under A.C.A. § 25-19-105(b)(12)'s personnel records balancing test.

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 City of Conway, which is a public entity subject to the FOIA. And the requested pieces of information, which are held by a public entity, are presumed to be public records, although 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 records' disclosure.

2. Exemption for personal contact information. You state that the custodian has determined that the commissioners' personal phone numbers and personal email addresses should be withheld from release under A.C.A. § 25-19-105(b)(13). That code section makes the personal contact information of certain nonelected government employees, including nonelected municipal employees, exempt from disclosure. But while Conway's civil service commissioners are appointed, thus meeting the provision's "nonelected" requirement, it is my opinion that they likely do not constitute "employees" of the city. They are appointed, rather than hired; they receive no salary for their service; and the city does not control their work performance. As a result, it is my opinion that their personal contact information is not exempt from release under A.C.A. § 25-19-105(b)(13).

3. Personnel records. Even though commissioners' personal email and phone numbers are not exempt from disclosure under A.C.A. § 25-19-105(b)(13), they may still be withheld under the balancing test for personnel records.

Under A.C.A. § 25-19-105(c)(3)(B), this office reviews decisions by records custodians regarding the release of personnel or evaluation records. "Personnel records" are frequently defined as 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 records" 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.

Clearly, commissioners' phone numbers and email addresses do not qualify as evaluation records. However, while "personnel records" are commonly understood to relate to "employees," this office has held that records pertaining to elected and nonelected officials, not just employees, can also constitute "personnel records." In Attorney General Opinion 2004-003, my predecessor explained:

I note that the exemption [for personnel records] does not specify that "personnel records" are limited to the records of non-elected employees. Rather, the language of the exemption broadly refers to "personal privacy." Because both elected and non-elected officials have an interest in "personal privacy," it is my opinion that the exemption should be construed to protect the privacy interest of both elected and non-elected officials.

Accordingly, it is my opinion that the phone and email contact information of civil service commissioners constitute their personnel records.

4. Test for release. 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.

5. Application. This office has previously concluded that while work email addresses are subject to disclosure under the FOIA, personal email addresses are generally exempt under the personnel-records balancing test. Individuals have a legitimate privacy interest in their personal email addresses, whereas the public typically has little or no interest in this information. Similarly, unlisted or unpublished personal telephone numbers are generally exempt from release.

This conclusion, however, is not absolute. There may be some circumstances in which the public's interest in an individual's personal email address or personal phone number outweighs the individual's privacy interest. But that determination is a question of fact for the custodian. In this case, no facts suggesting a public interest in this information have been presented to me.

Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General