Ms. I. Amanda Robinson 500 West Markham, Room 112 Little Rock, AR 72201
Dear Ms. Robinson:
I am writing in response to your request, made pursuant to A.C.A. §
By law, I am directed to opine whether the custodian's decision on release of the requested records is consistent with the FOIA. 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 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. No.
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, Ark. Ops. Att'y Gen. Nos.
In my opinion the records in question are "personnel records" for purposes of the FOIA. Under the relevant statute, A.C.A. §
The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy." However, the Arkansas Supreme Court has construed the phrase and adopted a balancing test to determine if it applies, weighing the interest of the public in accessing the records against the individual's interest in keeping the records private. See Young v.Rice,
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 record an employee's salary and date of hiring would amount to a "clearly unwarranted invasion of personal privacy." In my opinion, documents reflecting this type of information are subject to inspection and copying under the FOIA. See, e.g., Ark. Ops. Att'y. Gen. Nos.
In my opinion, then, the custodian's decision is consistent with the FOIA.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General