Opinion No. 2017-034

March 20, 2017

Jake Bleed, Director of Communications
Department of Finance and Administration
Office of Administrative Services
1515 West 7th Street, Suite 700
Little Rock, AR 72201

Dear Mr. Bleed:

You have requested my opinion regarding the Arkansas Freedom of Information Act (�FOIA�). Your request is based on Ark. Code Ann. � 25-19-105(c)(3)(B)(i) (Supp. 2015). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation 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.

Your correspondence indicates that a former employee, through a representative, has requested a copy of her personnel file, all documents referencing the reason for her termination, and all emails with any part of her name in it created in the last year. You have attached to your request for my opinion one document that you believe is responsive to the request, as redacted. You ask whether your decision to release this document, as redacted, is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian�s decision is consistent with the FOIA. You have provided me no information as to your decision regarding the classification of the record. Having reviewed the record, however, it appears to be what can be described as a �mixed record,� that is, it constitutes either the employee evaluation record of a former employee who has requested access to her own records or that former employee�s personnel record, but it also qualifies as personnel records of other employees named therein. Even though an employee or former employee has access to his or her own employee file under the FOIA, the custodian must consider whether information about the other employees rises to the level of protection under the test for the release of personnel records. It is not immediately apparent from the face of the record in question that the redacted portion of the record rises to that level. However, there may be facts and circumstances of which I have not been made aware that could justify the redaction you have made. I cannot act as a fact-finder in issuing opinions under the FOIA, and I therefore cannot definitively opine on whether your decision to redact certain information from the record is consistent with the FOIA.

I will set out all the definitions and standards and then apply them to the records you attached.

DISCUSSION

General standards governing disclosure.

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 met in this case. As for the first element, the documents are held by the state Department of Finance and Administration (DF&A), which is a public entity. As for the second element, the FOIA defines �public record� as:

[W]ritings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.[1]

In my opinion, the document in question reflects the performance or lack of performance of official functions by both the employee creating or providing the document and the former employee seeking the document. Therefore, in my opinion, the document is a public record and must be disclosed unless some specific exception provides otherwise.

Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees� personnel files.[2] For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: �personnel records�[3] or �employee evaluation or job performance records.�[4] 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 make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

Personnel-records exception.

The first of the two most relevant potential exceptions is the one for �personnel records,� which the FOIA does not define. But this office has consistently opined that �personnel records� are all records other than employee evaluation and job performance records that pertain to individual employees.[5] Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except �to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.�[6]

While the FOIA does not define the phrase �clearly unwarranted invasion of personal privacy,� the Arkansas Supreme Court, in Young v. Rice,[7] has provided some guidance. To determine whether the release of a personnel record would constitute a �clearly unwarranted invasion of personal privacy,� the Court applies a balancing test that weighs the public�s interest in accessing the records against the individual�s interest in keeping them private. The balancing takes place with the scale tipped in favor of disclosure.[8]

The balancing test elaborated by Young v. Rice 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.[9] If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. 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.[10]Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public�s interests.[11] The fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.[12]

Whether any particular personnel record�s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.[13]

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. Some items that must be redacted include:

Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. � 25-19-105(b)(13));
Marital status of employees and information about dependents (Op. Att�y Gen. 2001-080);
Dates of birth of public employees (Op. Att�y Gen. 2007-064);
Social security numbers (Ops. Att�y Gen. 2006-035, 2003-153);
Medical information (Op. Att�y Gen. 2003-153);
Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. � 25-19-105(b)(10));
Driver�s license numbers (Op. Att�y Gen. 2007-025);
Insurance coverage (Op. Att�y Gen. 2004-167);
Tax information or withholding (Ops. Att�y Gen. 2005-194, 2003-385);
Payroll deductions (Op. Att�y Gen. 98-126); and
Banking information (Op. Att�y Gen. 2005-194).

Employee-evaluation exception.

The second potentially relevant exception is for �employee evaluation or job performance records,� which the FOIA likewise does not define. But the Arkansas Supreme Court has 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.[14] This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.[15]

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

The employee was suspended or terminated (i.e., level of discipline);
There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).[16]

As for the final prong, the FOIA never defines the key phrase �compelling public interest.� But two 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.[17]

These commentators also note that �the status of the employee� or �his rank within the bureaucratic hierarchy� may be relevant in determining whether a �compelling public interest� exists,[18] 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 in the employee/employer relationship.[19]

Application.

I have no information as to your decision, as the custodian of the record, regarding the classification of the record. Accordingly, I cannot opine as to whether your decision in that respect is consistent with the FOIA. But from what I can tell from the face of the record at issue, it appears to be what is best described as a �mixed record.� A record is mixed when it can be classified as (1) more than one person�s employee evaluation record, (2) more than one person�s personnel record, or (3) at least one person�s evaluation and at least one person�s personnel record.[20] But I lack sufficient facts regarding this matter, and I cannot determine from the four corners of the document which of the above types of mixed records applies in this case.

Irrespective, however, the FOIA is clear that an employee or former employee has access to his or her own personnel or employee evaluation records.[21] But in the case of a mixed record, the question may arise whether the requester of one�s own file is entitled to another employee�s complete, unredacted personnel record contained within that file. If disclosure of the unredacted personnel record would rise to the level of a clearly unwarranted invasion of the other employee�s personal privacy, then redactions must be made.[22]

From the face of the record before me, I cannot discern the nature of a clearly unwarranted invasion of personal privacy that would require the redaction you have made. The question whether the release of information from a personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact to be decided in the first instance by the custodian of the record. As the custodian, and armed with all of the facts and circumstances concerning this record, you must apply the Young v. Rice balancing test discussed above. As an initial matter, you must determine whether the information at issue gives rise to more than a de minimis privacy interest. If it does not, the information must be released. If it does, you must next determine whether a public interest in disclosure outweighs this privacy interest. In this regard, the Arkansas Supreme Court has indicated that the strength of the public interest is gauged by �the extent to which disclosure of the information sought would �shed light on an agency�s performance of its statutory duties� or otherwise let citizens know �what their government is up to.��[23]

Because I lack sufficient facts beyond the face of the record to state whether the information, if released, would be a clearly unwarranted invasion of personal privacy�and because I cannot act as a fact-finder in issuing opinions under the FOIA[24]�I also cannot definitively opine on whether your decision to redact the information at issue is consistent with the FOIA.

Sincerely,

Leslie Rutledge
Attorney General
[1]Ark. Code Ann. � 25-19-103(7)(A) (Supp. 2015).
[2]This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. E.g. Op. Att�y Gen. 97-368; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 205-06 (Arkansas Law Press, 6th ed., 2017).
[3]Ark. Code Ann. � 25-19-105(b)(12): �It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter�. [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.�
[4]Ark. Code Ann. � 25-19-105(c)(1): �Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.�
[5]See, e.g., Ops. Att�y Gen. 2015-072, 99-147; Watkins, et al., at 202.
[6]Ark. Code Ann. � 25-19-105(b)(12) (Supp. 2015).
[7]308 Ark. 593, 826 S.W.2d 252 (1992).
[8]Watkins, et al., at 208.
[9]Young, 308 Ark. at 598, 826 S.W.2d at 255.
[10]Id., 826 S.W.2d at 255.
[11]Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
[12]E.g., Ops. Att�y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., note 2 supra, at 207.
[13]Ops. Att�y Gen. 2006-176, 2004-260, 2003-336, 98-001.
[14]Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att�y Gen. 2009-067; 2008-004; 2007-225; 2006-038; 2005-030; 2003-073; 98-006; 97-222; 95-351; 94-306; and 93-055.
[15]Thomas, 212 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
[16]Ark. Code Ann. � 25-19-105(c)(1) (Supp. 2015); Op. Att�y Gen. 2008-065.
[17]Watkins, et al., note 2 supra, at 238-39 (footnotes omitted).
[18]Id. at 237 (noting that �[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of �rank-and-file� workers are at issue.�).
[19]Cf. Op. Att�y Gen. 96-168; Watkins, et al., at 223.
[20]Cf. Ops. Att�y Gen. 2015-129, 2015-057.
[21]Ark. Code Ann. � 25-19-105(c)(2) (Supp. 2015).
[22]See Op. Att�y Gen. 2014-126 (opining that a portion of a record contained within a requester�s own personnel file was also the personnel record of another employee and that certain information must be redacted under the personnel records test as being a clearly unwarranted invasion of personal privacy).
[23]Stilley, note 11 supra, 332 Ark. at 312, 965 S.W.2d at 127.
[24]Op. Att�y Gen. 2009-131.

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