Judges: MARK PRYOR, Attorney General
Filed Date: 2/2/1999
Status: Precedential
Modified Date: 7/5/2016
Second Lieutenant Neal K. Duke Arkansas Highway Police P.O. Box 341 Marion, AR 72364
Dear Lt. Duke:
You have requested an official Attorney General opinion, pursuant to A.C.A. §
You indicate that a request has been presented to the Arkansas Highway Police for a copy of your personnel file. I have been provided with copies of the records in your file. The custodian of the records has determined that your personnel file, in its entirety, should be released, after your social security number and home telephone number have been redacted. I am directed by law to issue my opinion as to whether the custodian's determination regarding the release of this file is consistent with the FOIA. A.C.A. §
It is my opinion that the custodian's decision to release your personnel file, in its entirety, is not consistent with the FOIA. As discussed more fully below, certain records should be withheld from disclosure, and certain additional information should be redacted from the records that are released.
Records That Should Be Withheld From Disclosure
Some of the records contained in your personnel file constitute "employee evaluation/job performance records." These are the records that are entitled "Performance Evaluation," as well as any other records created in the evaluation of your job performance — both negative and positive.See, e.g., Ops. Att'y Gen. Nos.
However, all other records in your file that would constitute "employee evaluation/job performance records" — both positive and negative — are disclosable only if the following three 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. §
It is my understanding that you have not been suspended or terminated. Therefore, the first two of the above-listed conditions for the release of any "employee evaluation/job performance records" in your file have not been met. Such records therefore cannot be released.
Some of the records in your personnel file constitute "medical records," which are exempt from disclosure under A.C.A. §
This office has previously opined that grade transcripts constitute "scholastic records," which are exempt from disclosure under A.C.A. §
Your personnel file also contains certain tax records. All state income tax records are exempt from disclosure under A.C.A. §
Your personnel file contains numerous records pertaining to your insurance coverage. This office has previously opined that records reflecting an individual's insurance coverage should not be released, because they divulge intimate financial information about the individual. See, e.g., Ops. Att'y Gen. Nos.
Additional Information That Should Be Redacted
In addition to redacting your social security number and your telephone number, it is my opinion that certain additional information should be redacted from the records that are released.
Some of the records contained in your personnel file contain your (and other employees') scores on certain tests. This office has previously opined that the release of individuals' test scores would constitute a "clearly unwarranted invasion of personal privacy," within the meaning of the FOIA.1 See, e.g., Ops. Att'y Gen. Nos.
Many of the records in your file make reference to your marital status. This office has consistently opined that information concerning marital status is not disclosable. See, e.g., Ops. Att'y Gen. Nos.
Your driver's license number appears on many of the records in your file. This number should be redacted before any of those records are released. The federal Driver's Privacy Protection Act [
In addition to the above-discussed items, it is my opinion that two other items of information should be redacted from the records in your personnel file prior to release, on the basis of avoiding a "clearly unwarranted invasion of personal privacy."
The first is your home address. The Arkansas Supreme Court recently upheld a custodian's decision to withhold for release certain police officers' home addresses. Stilley v. McBride,
Second, I believe that your retirement number should be withheld from disclosure. This is private information the release of which does not further the purposes of the FOIA. In Stilley v. McBride, supra, the court placed emphasis on the fact that a FOIA request must be made for the purpose of furthering the policy for which the FOIA was enacted, namely, to keep the citizens of the state "advised of the performance of their public officials." Id. at 314. The release of your driver's license number and your retirement number do not, in my opinion, further this FOIA policy. They should therefore be redacted from the records that are released.
Finally, I must note one other matter. It is not clear from your records whether your telephone number is listed or unlisted. I have consistently opined that although unlisted telephone numbers may be withheld from disclosure, listed telephone numbers are not exempt from release. See,e.g., Op. Att'y Gen. No.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:SBA/cyh