Opinion No. 2017-099
September 20, 2017
Mr. Bruce T. Moore
City Manager
City Hall, Room 203
500 West Markham Street
Little Rock, AR 72201-1427
Dear Mr. Moore:
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 someone has requested a list of the “Little Rock Police officers that have been given a $5,000.00 signing bonus and left employment with the City since 2014, copies of the F4 forms regarding these officers submitted by LRPD to the Arkansas Commission on Law Enforcement Standards and Training (“CLEST”), and polic[ies] or procedures regarding the signing bonus.” You state that the payments in question are not bonuses, but are “incentive pay for recruits who successfully complete recruit training for the Little Rock Police Department.” The records custodian has determined that the requested records are subject to disclosure. You ask whether the decision to disclose the above-referenced personnel records is consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian’s decision is consistent with the FOIA. I must note initially that you have not provided me with copies of the records that have been requested. Without having reviewed these records, I cannot opine definitively concerning whether they should be disclosed, withheld as exempt, or disclosed but with exempt information redacted. Nevertheless, I will discuss the principles of law that are applicable to the types of records that have been requested.
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 City of Little Rock, which is a public entity. As for the second element, the FOIA defines a “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]
Therefore, in my opinion, these documents are public records 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.
Your correspondence indicates that the custodian has determined that records at issue are personnel records. I will therefore limit my discussion to the test for disclosure relating to personnel records.
The FOIA does not define the term “personnel records.” 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));
Employee personnel number (Ops. Att’y Gen. 2014-094; 2007-070);
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).
Application.
I must reiterate here that, because I have not been provided copies of the records the City of Little Rock plans to release, I cannot definitively opine whether the custodian’s decisions are consistent with the FOIA. As I understand it, however, the City intends to release a list of the names of police department recruits who received the “incentive pay” since 2014 but who have since left the City’s employment. It has long been the opinion of this office that salary or payroll information of public employees is generally open to public inspection, so long as exempt information like the items listed above are redacted or not included.[14] The custodian will need to review the list of names to ensure that no exempt information is disclosed.
With respect to the F4 forms the City submits to CLEST, it is my understanding that this form reflects a police officer’s change in status with a police department. I have not been made aware of all of the information contained on such forms. This office has previously opined that CLEST initial employment reports and personal history statements are generally disclosable with certain discrete items of information redacted.[15] The custodian would need to carefully review such forms to determine what, if any, exempt information should be redacted.
Sincerely,
Leslie Rutledge
Attorney General