Ms. Stacey Witherell Employee Services Manager City of Little Rock Human Resources Department 500 W. Markham, Ste. 130W Little Rock, AR 72201-1428
Dear Ms. Witherell:
I am writing in response to your request for my opinion regarding application of the Arkansas Freedom of Information Act ("FOIA"), A.C.A.25-19-101 et seq. (Repl. 1996 Supp. 2001). You have submitted your request pursuant to A.C.A. 25-19-105(c)(3)(B), which authorizes the custodian, requester, or subject of personnel or evaluation records to seek an opinion from the Attorney General. The supporting information you have provided reflects that an attorney, on behalf of his clients, has filed a request for the release of certain records pertaining to City of Little Rock employees. You describe the request as being for "basic payroll records reflecting employee salaries." Specifically, counsel has requested the following:
1. For the period January 1, 1998 through December 31, 1999, copies of all Personnel Status Change Forms for all persons employed in the ranks of Lieutenant, Captain, Assistant Chief and Chief at the LRPD; and,
2. For the period January 1, 1998 through December 31, 1991 [sic], copies of all Personnel Status Change Forms for all persons holding a department head position or the position of Assistant City Manager or City Manager for the City of Little Rock.
As custodian of records, you report having tentatively concluded that the release of these documents would be consistent with the FOIA.
RESPONSE
In my opinion, if, as seems likely, the Personnel Status Change Forms merely record an employee's history of changes in position and salary, your decision to disclose the requested information is consistent with the mandates of the FOIA.
The FOIA provides for the disclosure upon request of certain "public records," which are statutorily defined as follows:
"Public records" means writings, 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.
A.C.A. § 25-19-103(5)(A). Given that the subjects of the request are all City of Little Rock employees, I believe documents containing the requested information clearly qualify as "public records" under this definition.
As I noted in the attached Ark. Op. Att'y Gen. No. 99-305, which also dealt with the disclosability of salary information:
If records fit within the definition of "public records" . . ., they are open to public inspection and copying under the FOIA except to the extent they are covered by a specific exemption in that Act or some other pertinent law. The "unwarranted invasion of personal privacy" exemption is found in the FOIA at A.C.A. § 25-19-105(b)[12]. It exempts from public disclosure "personnel records to the extent that disclosure would constitute clearly unwarranted invasion of personal privacy."
. . . 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 and job performance records that pertain to individual employees, former employees, or job applicants. See, e.g., Op. Att'y Gen. No. 99-147, citing Watkins, The Arkansas Freedom of Information Act (m m Press, 3rd Ed., 1998) at 134.
Accord Ark. Ops. Att'y Gen. Nos. 2002-107 and 2001-122.
The question arises, then, whether documents reflecting an employee's salary history — and, more specifically, "Personnel Status Change Forms" — constitute employee evaluation or job performance records, as opposed to personnel records. This distinction matters because the former category is not subject to the "clearly unwarranted invasion of personal privacy" standard discussed above. Rather, under the provisions of the FOIA, "employee evaluation or job performance records" are disclosable only if the following 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).
In Ark. Ops. Att'y Gen. Nos. 2002-107, 2002-090, 2001-185, 2001-022 and 99-305, this office analyzed requests for salary information, including records documenting changes in salary, using the standard for disclosure of personnel records, not "employee evaluation or job performance records." In my opinion, a record that merely reports salary over time does not in itself constitute the sort of candid in-house assessment one would expect to find in an "employee evaluation or job performance record"; rather, a salary record merely documents a history of actions taken on the possible basis of assessments recorded in distinct "employee evaluation or job performance records." By contrast, documents that set forth the reasons for adjusting any employee's salary, as opposed to a mere history of salary adjustment may, although they need not necessarily, constitute employee evaluation or job performance records. To illustrate, a document that details an employee's fine performance and recommends a raise may well constitute an employee evaluation or job performance record, whereas a document that merely announces an across-the-board salary increase will not. Although by its very name a "Personnel Status Change Form" would appear to qualify as a personnel record under this standard, you as custodian should confirm this factual assumption before applying the standard applicable to personnel records.
At issue, then, is whether disclosing documents that record salary history would amount to a "clearly unwarranted invasion of personal privacy." The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is not relevant to the analysis. See Ark. Ops. Att'y Gen. Nos. 2001-112, 2001-022, 94-198, 94-178 and 93-055; Watkins, supra at 126. In Opinion No. 99-305, I offered the following analysis of this issue:
The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court, however, has construed the phrase. In determining which disclosures constitute a "clearly unwarranted invasion of personal privacy," the court applies a balancing test. The court will weigh the interest of the public in accessing the records against the individual's interest in keeping the records 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."
* * *
. . . [C]ourts have found relatively little privacy interest in records revealing names, date and place of birth, salaries of public employees, training or education background, and work experience. Kruzon v. Department of Health Human Services, 649 F.2d 65 (1st Cir. 1981); Simpson v. Vance, 648 F.2d 10 (D.C. Cir. 1980).
Under the balancing test, if the public's interest is substantial, it will usually outweigh any privacy interest. Young v. Rice, 308 Ark. at 598. If there is little public interest, it is sufficient if the privacy interest is not insubstantial. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998).
In my opinion the public's interest in the salaries and qualifications of its employees is substantial. It will therefore usually outweigh any privacy interest. The records requested, in my opinion, do not appear to contain the type of "intimate" information which could overcome the public's interest under A.C.A. § 25-19-105(b)(10) [now A.C.A. § 25-19-105(b)(12)]. The salaries of public employees are a matter of public record and are not exempted by A.C.A. § 25-19-105(b)(10). See Ops. Att'y Gen. 97-079 and 96-205 (fn.1). To the extent the District has records reflecting this information, it should be provided.
I continue to subscribe to this analysis and consequently believe that your decision to disclose the requested salary records is consistent with the FOIA. Indeed, in Ark. Op. Att'y Gen. No. 2001-185, I reached an identical conclusion specifically with respect to Personnel Status Change Forms.
However, as I further noted in Opinion 2001-185:
[T]he personnel status change forms . . . may contain specific items of information that may be exempt from disclosure, such as social security numbers, see, e.g., Op. Att'y Gen. No. 2001-080, medical information, see A.C.A. § 25-19-105(b)(2), and driver's license numbers, see 8 U.S.C. § 2721 et seq. These are examples only, and this list should not be construed to be exhaustive. The records should be reviewed for any type of exempt information. Such information should be redacted from these records before they are released. I have also opined that under certain factual circumstances, home addresses and telephone numbers can be withheld from disclosure. See, e.g., Op. Att'y Gen. No. 2001-091, citing Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). Withholding addresses and telephone numbers would require factual circumstances under which this information could be used to harass the employees.
Assistant Attorney General Jack Druff prepared the foregoing, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:JD/cyh