Judges: MIKE BEEBE, Attorney General
Filed Date: 9/7/2006
Status: Precedential
Modified Date: 7/5/2016
Ms. Judy Besancon, Risk Management Director Department of Health and Human Services Post Office Box 1437, Slot S260 Little Rock, Arkansas 72203 Dear Ms. Besancon:
I am writing in response to your request, pursuant to A.C.A. §
You state that you "believe the balance tips towards protection of the two public employees and DHHS determined that disclosure of any personal information from the personnel files of these two employees is clearly an unwarranted invasion of personal privacy." You also state that "[s]pecifically, DHHS declines to release any personal information, such as home address, phone number, social security number, educational institutions attended, prior employers, or email addresses." You have asked my opinion as to whether this decision is consistent with the FOIA.
RESPONSE
I have not been provided the records in question, and thus cannot make any conclusive determinations as to which "personal information" is properly subject to redaction. I can state, however, in response to your request, that home addresses and social security numbers of state employees are specifically exempt from disclosure under state and federal law. Unlisted home telephone numbers are properly redacted. Listed home telephone numbers of state employees may be redacted under the 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. §
Given that the subjects of the request are both state employees, I believe documents containing information related to their employment clearly qualify as "public records" under this definition.
The FOIA requires certain public records to be open to inspection and copying by citizens but also provides a lengthy list of records that are shielded from public inspection. Although you have not indicated the exact scope of the records requested in this regard, I assume that a request has been made for some type of employment-related files of the two employees and you deem the responsive records to be "personnel records" for purposes of the FOIA. You have proposed to redact "personal information" contained in these files and you enumerate a specific list of items you intend to redact, including home address, phone number, social security number, educational institutions attended, prior employers, or email addresses.
I must note that specific exemptions exist with regard to two of the items you enumerate. Specifically, home addresses of state employees are specifically exempted by A.C.A. §
The remaining specific items you propose to redact are phone number, educational institutions attended, prior employers, and email addresses. Because there is no express statutory exemption mentioning these particular items, the issue in this instance centers around the extent to which you may properly redact items from responsive records under the A.C.A. §
I have summarized the test for determining the release of personnel records under this exemption as follows:
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. 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." If there is little public interest in the information, the privacy interest will prevail if it is not insubstantial. Stilley v. McBride,332 Ark. 306 ,965 S.W.2d 125 (1998).The question of whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. Ops. Att'y Gen. Nos.
2003-336 ; 2003-201; 2001-101; 98-001.
Op. Att'y. Gen.
With regard to the privacy side of the balancing test, the Arkansas Supreme Court has stated, relying on federal decisions, that there is a substantial privacy interest in records revealing the intimate details of a person's life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends. Stilley,supra at 311. Determining whether a viable privacy interest exists requires an objective analysis and the fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is not relevant to the analysis. See Ops. Att'y Gen. Nos.
With regard to the public interest side of the balancing test, the court in Stilley also discussed with approval an aspect of the balancing test used in Department of Defense v. FLRA,
One final point should be mentioned about the balancing test employed under A.C.A. §
With regard to your contention that these records were not requested for the purpose of obtaining information about the workings of government, but rather for the purpose of harassing the employees in question, I must point out the long-held view that the motive of an FOIA requester is ordinarily irrelevant to the analysis. See, e.g., Op. Att'y. Gen. No.
2002-067 ("[T]he balancing test under A.C.A. §25-19-105 (b)(12) does not turn upon the particular requester's motive in seeking the record where a public interest nevertheless exists in the information sought."). Accord, Ops. Att'y Gen. Nos.2002-087 ; 98-186; 96-309; 92-289 and Watkins, The Freedom of Information Act at 76 (m m Press, 3rd ed. 1998). This view is supported by U.S. Supreme Court precedent. In Department of Defense v. FLRA,510 U.S. 487 (1994), the United States Supreme Court cited with approval language of an earlier case, Department of Justice v. Reporters Comm. For Freedom of Press,489 U.S. 749 (1989) to this effect: "``whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.' Reporters Comm.,489 U.S., at 771 . Because Congress clearly intended the FOIA ``to give any member of the public as much right to disclosure as one with a special interest [in a particular document]' [citation omitted] . . . ``the identity of the requesting party has no bearing on the merits of his or her FOIA request.'"510 U.S. 487 ,496 . The Court also stated that "all FOIA requestors have an equal, and equally qualified, right to information. . . ." Id. at 499." Thus whether disclosure of a private document . . . is warranted must turn on the nature of the requested document and its relationship to ``the basic purpose of the Freedom of Information Act to open agency action to the right of public scrutiny' [citation omitted] rather than on the particular purpose for which the document is being requested." Reporters Comm.,489 U.S. at 772 . Justice Ginsburg, in her concurrence in FLRA, noted the reason for this rule: "[t]his main rule serves as a check against selection among requesters, by agencies and reviewing courts, according to idiosyncratic estimations of the request's or requester's worthiness."510 U.S. at 508 .
See also, Ops. Att'y Gen.
Turning now to the application of the A.C.A. §
. . . my predecessors and I have each opined that public employee's listed home phone numbers are generally subject to disclosure, but that unlisted numbers, in which there clearly is a heightened privacy interest, should be withheld. [footnote omitted.] See, e.g., Op. Att'y Gen. Nos. Opinion No.
2005-004 ; 2004-212; 2003-027; 2003-097; 2000-306; 99-016. The conclusion that there is no general exemption for listed home telephone numbers is based upon the presumption that in most factual scenarios there is little privacy interest in information that has already been made public, and that therefore, the privacy interest would presumptively be outweighed in a balancing test. See Op. Att'y Gen.2003-325 and 2001-091. This office has recognized, however, that factual circumstances could occur under which there might be a heightened privacy interest in listed telephone numbers. This is reflected in the following excerpt:[T]here is authority from the Arkansas Supreme Court that could be construed to permit the redaction of home telephone numbers. . . . See Stilley v. McBride,
332 Ark. 306 ,965 S.W.2d 125 (1998). It should be noted that Stilley did not involve a FOIA request for home telephone numbers. Rather, it involved a request for the home addresses of certain police officers. The Stilley court opined that the home addresses of the police officers could be withheld from disclosure because that information could be used to harass the officers and their families. . . . Assuming that the custodian of the records determined factually that the numbers could be used in this way, the decision to redact them was consistent with the FOIA, as interpreted by the court.
Op. Att'y Gen.
In my opinion the facts you describe concerning the job duties of the employees in question give rise to a heightened privacy interest in even a listed telephone number. In my opinion, therefore, your decision to redact any home telephone numbers is consistent with the FOIA.
The next two items you propose to redact are "educational institutions attended" and "prior employers." I and my predecessors have consistently opined that this type of information is subject to inspection and copying under the FOIA and is not exempt from disclosure.
In Op. Att'y. Gen.
This office has previously opined, in Opinions too numerous to cite, that records reflecting the educational background of public employees are generally open to inspection under the FOIA. See e.g., Ops. Att'y. Gen.
1998-202 and 94-319.* * *
Although certain individual academic records, such as school transcripts, may still be eligible for exemption when contained in personnel files, employee records reflecting a public employee's general educational background, including schools attended and degrees received, appearing for example on an employment application or resume, are open to public inspection under the FOIA.
Id. at 4-5, quoting Op. Att'y Gen.
The release of such records is not generally considered to constitute a "clearly unwarranted invasion of personal privacy" under the exception for personnel records found at A.C.A. §
As indicated above, a similar conclusion ordinarily obtains with regard to "prior employers" or the work history of a public employee. Again, in Op. Att'y Gen.
With regard to the release of information on work history of school district job applicants, one of my predecessors had occasion to note that: "It has been concluded in Attorney General opinions too numerous to cite . . . that information related to work history of public employees is subject to disclosure under the act, and does not give rise to a ``clearly unwarranted invasion of personal privacy.'" Op. Att'y Gen.
1995-113 at 5. In my opinion this would include records relating to the licensure status of applicants or employees. See e.g., Op. Att'y. Gen.2003-034 .
Op. Att'y Gen.
The general rule, therefore, is that information reflecting educational background and work history is subject to inspection and copying under the FOIA and is not exempt as a "clearly unwarranted invasion of personal privacy."
You have stated that the FOIA request in this instance "seeks only personal information about a public employee and does not seek any records regarding any governmental activity." You also state that you agree that "the public has an interest in ensuring that public employees are qualified to perform their jobs," but you state that the job qualifications "consist of a law license" for the attorney in question, and you have no objection to providing that document. I must note, however, that educational background and work history also reflect job qualifications and a public interest therefore attaches to this information. It is not clear to me, without a review of the records, or any additional pertinent facts, how the public's interest in this information is outweighed by the individual's privacy interest, or how this information could be used to harass, threaten, or impinge upon the privacy of the employees, for purposes of the balancing test set out above. As custodian, you must review the records in question and the facts at your disposal to make the determination in this regard, subject of course to judicial review.
The final specific item you propose to redact is "email addresses." You have not indicated whether you propose to redact the work e-mail addresses of the employees in question, the home email addresses, or both. I most recently addressed the release of email addresses in Op. Att'y. Gen.
. . . as a general matter, the employees' work e-mail addresses should be released, but as a general matter, the employees' personal e-mail addresses should not be released.
* * *
It is difficult to conceive of any privacy interest that public employees could assert in their work e-mail addresses in this case. I can, however, envision a public interest in such information. Because there is essentially no privacy interest to weigh in the balance against the public interest, the public interest must prevail.
* * *
I therefore conclude generally that because the individual's privacy interest in personal e-mail addresses is not insubstantial and because the public has little or no interest in such information, the privacy interest must prevail, and records reflecting personal e-mail addresses should not be released.
Id. at 2 and 4.
As noted in Ops. Att'y Gen.
Although the items discussed above are the only ones you specifically enumerate as those you intend to redact, you state more broadly that you intend to redact "any personal information." I have not reviewed the records in question, and cannot opine as to the legality of any further redactions. I will note, however, that previous opinions of the Attorney General detail a great many items that are properly redacted from personnel records. See e.g., Ops. Att'y Gen.
Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:ECW/cyh