Opinion No. 2017-038

March 23, 2017

The Honorable Henry �Hank� Wilkins, IV
Jefferson County Judge
101 West Barraque Street
Pine Bluff, AR 71601

Dear Judge Wilkins:

You have requested my opinion regarding the Arkansas Freedom of Information Act (�FOIA�). Your request, made as the custodian of the records, 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 the Jefferson County Metropolitan Emergency Communications Association (MECA) has received a FOIA request for access to two termination letters addressed to a former MECA employee, a letter to the MECA Board members from the former MECA employee, confirmation of the former employee�s salary, a copy of the former employee�s personnel file, as well as copies of all records relating to the former employee�s termination. You have determined that the requested records are exempt from disclosure. You ask whether your decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian�s decision is consistent with the FOIA. Because I have not been provided with copies of the records at issue or any factual determinations that went into your analysis of the records, I cannot definitively opine regarding whether any specific document should or should not be released. With respect to the decision to withhold disclosure of the former employee�s annual salary, this office has consistently opined that such information does not rise to the level of a �clearly unwarranted invasion of personal privacy� under the test for disclosure of personnel records and must be released. Additionally, this office has stated that letters of termination that give the reasons for termination are employee evaluation records and must be judged under the applicable test. But if the letters reflect the mere fact of termination, they must be evaluated under the test for disclosure as personnel records. As to the other records that have been requested, however, I am limited to discussing the legal standards you must apply to the specific types of documents at issue.

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 to be met in this case. As to the first element, the documents are held by the Jefferson County MECA, 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]

The custodian has presumably determined that all of the requested records meet this definition. Not having reviewed the records, I am unable to fully assess that determination. I can comfortably opine that most records contained in personnel files are �public records,� as are other job-related records of the sort requested in this instance. If, in fact, those records are determined to be �public records� as defined above, then they�along with the other records�must be disclosed unless a specific exemption provides otherwise.[2]

Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees� personnel files.[3] For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: �personnel records�[4] or �employee evaluation or job performance records.�[5] 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.[6] 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.�[7]

While the FOIA does not define the phrase �clearly unwarranted invasion of personal privacy,� the Arkansas Supreme Court, in Young v. Rice,[8] 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.[9]

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.[10] 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.[11]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.[12] 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.[13]

Whether any particular personnel record�s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.[14]

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.[15] This exemption includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.[16]

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).[17]

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.[18]

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.[19] This 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.[20]

Application.

With respect to the request for the former employee�s salary information, this office has consistently opined that the release of a public employee�s salary is to be evaluated under the test applicable to personnel records, and that such disclosure would not constitute a �clearly unwarranted invasion of personal privacy� based on this test.[21] I have not been made aware of any facts in this matter that would alter that conclusion.

With regard to letters of termination, this office has opined that such a letter constitutes an employee evaluation record if it contains the reasons for the termination.[22] But if the letter merely reflects, without elaboration, the fact of an employee�s termination, this office has maintained that such a letter is properly classified as a personnel record.[23] Not having seen the letters at issue in this case, I cannot opine further in this regard.

In conclusion, because I have not reviewed the actual records in question or been sufficiently apprised of the surrounding facts, I cannot render a definitive opinion regarding your release decision. I am instead limited to explaining the law governing release of the general types of records that have been requested in this instance. As the custodian of the records, you must apply these definitions and the applicable tests to each specific record to determine whether the FOIA requires its public disclosure.

Sincerely,

Leslie Rutledge
Attorney General
[1]Ark. Code Ann. � 25-19-103(7)(A) (Supp. 2015).
[2]Op. Att�y Gen. 2016-018.
[3]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).
[4]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.�
[5]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.�
[6]See, e.g., Ops. Att�y Gen. 2015-072, 99-147; Watkins, et al., at 202.
[7]Ark. Code Ann. � 25-19-105(b)(12) (Supp. 2015).
[8]308 Ark. 593, 826 S.W.2d 252 (1992).
[9]Watkins, et al., note 3 supra, at 208.
[10]Young, 308 Ark. at 598, 826 S.W.2d at 255.
[11]Id., 826 S.W.2d at 255.
[12]Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
[13]E.g., Ops. Att�y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
[14]Ops. Att�y Gen. 2006-176, 2004-260, 2003-336, 98-001.
[15]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.
[16]Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
[17]Ark. Code Ann. � 25-19-105(c)(1) (Supp. 2015); Op. Att�y Gen. 2008-065.
[18]Watkins, et al., note 3 supra, at 238-39 (footnotes omitted).
[19]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.�).
[20]Cf. Op. Att�y Gen. 96-168; Watkins, et al., at 223.
[21]Cf. Ops. Att�y Gen. 2015-016, 2012-014.
[22]Cf. Op. Att�y Gen. 2013-055 (and opinions cited therein).
[23]Id.