Mr. Mike Hutchens Pulaski County Comptroller 201 South Broadway, Suite 420 Little Rock, Arkansas 72201
Dear Mr. Hutchens:
I am writing in response to your request, made under A.C.A. §
All wages filed on W2 forms, overtime pay, overtime hours, as well as first name, middle name, last name, race, gender, date of birth, hire date, position, department, wage garnishments, employee ID number, as well as any other information the county maintains in payroll records for each employee and officer from 04/01/2008 to 08/01/2008.
E-mail from William Phillips to Mike Hutchens, Pulaski County Comptroller, Pulaski County Administration (August 13, 2008).
As the records' custodian, you have determined that the requested records, with the exception of dates of birth and wage garnishments, are personnel records subject to disclosure under the FOIA. Your request goes on to state that you "will not be supplying any federal forms to comply with this request, but, rather intend to comply . . . by providing a series of reports prepared by the payroll department." Attached to your request is a list of Pulaski County employees who have objected to the release of their records and requested an Attorney General's opinion. *Page 2
Pursuant to A.C.A. §
RESPONSE
My statutory duty under A.C.A. §The FOIA provides for the disclosure upon request of certain "public records," which the Arkansas Code defines 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 *Page 3 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. §
As my predecessor noted in Op. Att'y Gen.
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.1999-147 , citing Watkins, THE ARKANSAS FREEDOM OF INFORMATION ACT (m m Press, 3rd Ed., 1998) at 134.
Accord Op. Att'y Gen.
In my opinion, the records in question are "personnel records" for purposes of the FOIA. As noted above, "personnel records" are open to public inspection and copying, except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." A.C.A. §
The fact that section
25-19-105 (b)(10) [now subsection 105(b)(12)] exempts disclosure of personnel records only when a clearly unwarranted personal privacy invasion would result, indicates that certain "warranted" privacy invasions will be tolerated. Thus, section25-19-105 (b)(10) requires that the public's right to knowledge of the records be weighed against an individual's right to privacy. . . . Because section25-19-105 (b)(10) allows warranted invasions of privacy, it follows that when the public's interest is substantial, it will usually outweigh any individual privacy interests and disclosure will be favored.
However, as the court noted in Stilley v. McBride,
At issue, then, is whether disclosing documents that reflect all wages filed on W2 forms, overtime pay, overtime hours, employee name, race, gender, date of birth, hire date, position, department, wage garnishments, ID number, and "any other information the county contains in payroll records," would amount to a "clearly unwarranted invasion of personal privacy." *Page 5
In my opinion, documents reflecting the bulk of the requested information are subject to inspection and copying under the FOIA.See Op. Att'y Gen.
With regard, however, to wage garnishments and dates of birth, I believe you have correctly determined that this information is exempt from disclosure. Regarding wage garnishments, I previously addressed this matter in Attorney General Opinion
With regard, additionally, to the request for the "employee ID number," it should be noted that while I have no information regarding such numbers, this office in at least one other instance opined that the custodian correctly decided to redact an "employee personnel number" from particular records where the number provided access to an employee's social security number. See Op. Att'y Gen.
Records containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks, or applications thereon, to *Page 6 perform security functions, including, but not limited to, passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to computers, computer systems or networks, or any data residing therein;
A.C.A. §
As indicated, I have no information regarding the requested ID numbers. If, however, these numbers provide access to computerized data, I believe it is clear that subsection
This provision addresses a problem pointed out by the Department of Information Systems regarding security-related information in government computer systems and networks. In short, security information in public records is potentially available under the FOIA. It is likely that transactional information, including credit card numbers, would often be available as well. The opportunity for mischief is obvious and would be eliminated by the proposed amendment, which exempts records containing security information, i.e., passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing unauthorized access. While it could be argued that some of all of this information does not constitute a record of official performance or lack thereof, and thus not be subject to disclosure, the proposed amendment provides needed certainty in this regard.
Report of the Electronic Records Study Commission Recommendations forAmendments to the Arkansas Freedom of Information Act (December 15, 2000) at 26. *Page 7
With regard finally, to the balance of the information requested, although the salaries of public employees are generally subject to inspection under the FOIA, my predecessors have previously stated that "records reflecting federal tax information and withholding are exempt from public inspection and copying." See Op. Att'y Gen. Nos.
Bearing in mind the above referenced assumptions and the exemption for personal identification numbers, your decision in my opinion is consistent with the FOIA.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
*Page 1DUSTIN McDANIEL, Attorney General