Attorney General of Arkansas — Opinion
Opinion Delivered September 16, 2002
MARK PRYOR, Attorney General
Sergeant Darryl J. Hall, Sr. c/o Lieutenant Gloria Weakland Arkansas State Police Headquarters Troop A, Highway Patrol Division 1 State Police Plaza Drive Little Rock, AR 72209
Dear Sergeant Hall:
I am writing in response to your request, pursuant to A.C.A. §25-19-105(c)(3)(B), for an opinion concerning the release of certain records that are maintained in your personnel file with the Arkansas State Police. According to the information you have supplied, a request, dated September 10, 2002, has been made under the Freedom of Information Act (“FOIA”) to examine and copy a portion of your personnel file, specifically, “[a]ny document contained within the personnel file which may confirm disciplinary job action stemming from allegations filed in 1995 by three females.” You state that you object to the release of your personnel file in response to this request.
By law, I am directed to opine whether the custodian’s decision as to release of the requested records is consistent with the FOIA. See A.C.A. § 25-19-105(c)(3)(B)(i). You have not indicated whether the custodian of the records intends to release them for review, nor have you provided me with a copy of the records themselves. In the absence of this information, I obviously cannot opine definitively regarding the records’ release. However, I can and will set forth the applicable analysis the custodian should apply to determine the releasability of the records in question.
The records at issue will probably comprise either “employee evaluation/job performance records” or “personnel records” within the meaning of the FOIA. It will be important for the custodian to classify the records correctly because the standards for releasing these two types of records differ. I will set forth those standards below:
Employee Evaluation/Job Performance Records
Generally, employee evaluation and job performance records are closed and confidential unless the following three conditions have been met:
(1) There has been a final administrative resolution of any suspension or termination proceeding;
(2) The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and
(3) There is a compelling public interest in the disclosure of the records in question.
A.C.A. § 25-19-105(c)(1).
The FOIA does not define the phrase “employee evaluation or job performance record,” nor have the courts found occasion to do so. The Attorney General has consistently taken the general position that records relating to an employee’s performance or lack of performance on the job, and records reflecting disciplinary action taken for employee misconduct are properly classified as job performance records under the FOIA. See, e.g., Ark. Ops. Att’y Gen. Nos. 2001-343; 2001-203; 2000-170; 96-132; 91-324. Formal, written employee evaluations of course fall into this category. In addition, this office has previously opined that documents such as written reprimands and letters of caution, documents upon which a recommendation for dismissal was based, and letters related to promotions and demotions are “job performance records.” See, e.g., Ops. Att’y Gen. Nos. 2001-203; 99-147; 93-105, 93-055, 92-231, 92-191, 91-324, and 91-303.
If any of the records that have been requested are, in fact, employee evaluation or job performance records, then the custodian must apply the above stated three-part standard to determine their disclosability. The question of whether there has been a final administrative resolution of a termination or suspension, and the determination as to whether the records formed a basis for such action are clearly ones of fact that the custodian should readily be able to answer. If these questions are answered in the affirmative, and further if the custodian determines that there is a compelling public interest in disclosing the records, they should be produced for inspection and copying.
The FOIA at no point defines the phrase “compelling public interest.” However, a recognized commentator on the FOIA has provided some guidelines for making the factual determination whether such an interest exists. It has been stated that “[t]he nature of the problem that led to the suspension or termination will undoubtedly bear on the `compelling public interest’ question. . . .” J. Watkins, The Arkansas Freedom of Information Act 146 (3rd ed. 1998). Further, “t]he public’s interest in disclosure is most likely to be compelling when the records reflect a breach of trust or illegal conduct by public employees. . . . However, the mere fact that an employee has been suspended or terminated does not mean that the records should be made public; if that were the case, the `compelling public interest’ phrase would be a redundancy. . . .” Id.
Elaborating on this point, Professor Watkins remarks: “A general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present.”Id. at 147. Professor Watkins additionally notes that the status of the employee, or “his rank within the bureaucratic hierarchy,” may also be relevant in determining whether a “compelling public interest” exists Id. at 146-47 (remarking 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.”)
Under the FOIA, “personnel records” must be released unless the release of such records would constitute a “clearly unwarranted invasion of personal privacy.” A.C.A. § 25-19-105(b)(12). The FOIA does not define the term “personnel records.” Whether a particular record constitutes a “personnel record” within the meaning of the FOIA is, of course, a question of fact that can only be determined upon a review of the record itself. However, the Attorney General has consistently taken the position that “personnel records” are all records, other than employee evaluation/job performance records, that pertain to individual employees, former employees or job applicants. See, e.g., Ark. Op. Att’y Gen. No. 99-147, citing The Arkansas Freedom of Information Act, supra at 134.
As noted above, if the requested records in fact qualify as “personnel records,” the question becomes whether their release would constitute a clearly unwarranted invasion of the personal privacy of the employee. The FOIA does not define the phrase “clearly unwarranted invasion of personal privacy.” However, the Arkansas Supreme Court has construed the phrase. In determining which disclosures constitute a “clearly unwarranted invasion of personal privacy,” the court applies a balancing test, weighing the interest of the public in accessing the records against the individual’s interest in keeping them private. See Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). If the public’s interest outweighs the individual’s interest, the release of the records will not constitute a “clearly unwarranted invasion of personal privacy.”
The custodian must evaluate all of the records that have been requested under the foregoing principles to determine whether they contain information that would render them subject to the exemptions for personnel records or for employee evaluation/job performance records.
If the custodian decides to release a particular record under one of the above standards, he/she should further review the particular document to determine whether it contains specific information that is exempt from disclosure under any of various other exemptions. If so, this information should be redacted from the record prior to its release. For example, the home addresses of nonelected state employees are specifically exempt. A.C.A. § 25-19-105 (b) (13). The custodian should also redact any social security numbers contained in the documents. See, e.g., Op. Att’y Gen. No. 99-011, citing 5 U.S.C. § 552a (the “Federal Privacy Act”). The custodian should likewise redact unlisted telephone numbers. See, e.g.,
Op. Att’y Gen. No. 99-054. More generally, where the facts indicate that a particular individual has a heightened privacy interest, the listed telephone number and home address (other than that of a nonelected state employee, which is specifically exempt as noted above), should be redacted as well. See Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125
(1998); Ops. Att’y Gen. Nos. 2001-123; 99-054. Some records may further contain references to other employees, in which case the custodian will need to determine whether these references are independently exempt from disclosure as personnel records or employee evaluation/job performance records of the referenced co-workers. Any review of such references should proceed under the applicable tests set forth above.
Finally, records that are otherwise releasable may be withheld from release if they contain information in which an individual has a constitutional privacy interest. The Arkansas Supreme Court has recognized that the constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to the release of documents containing constitutionally protectable information. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). The McCambridge court held that a constitutional privacy interest applies to matters that: (1) an individual wants to and has kept confidential; (2) can be kept confidential but for the challenged governmental action in disclosing the information; and (3) would be harmful or embarrassing to a reasonable person if disclosed. If the custodian of the records determines factually that any information in the requested records meets the three prongs of test laid out by th McCambridge court, he must then consider whether the governmental interest in disclosure under the Act (i.e., the public’s legitimate interest in the matter) outweighs any privacy interest in their non-disclosure. Again, this determination will be a factual one, based upon the information available to the custodian.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
MARK PRYOR Attorney General