PROCESSING FOIA REQUESTS Step 1: Request Received If request is oral, reduce to writing. Document date of receipt. Step 2: Assess the Request Is the Requestor an Arkansas citizen? Does the request describe the records with sufficient specificity to allow the custodian to locate the records with reasonable effort? Does the requestor seek records, as opposed to information or answers to questions? Is the agency the custodian of the records requested? If not, notify the requestor and identify the custodian, if known or readily ascertainable. Do responsive records exist? No obligation to create records; however, consider advantages of creating a record to summarize information contained in a large volume of documents What types of records are being requested (i.e. personnel or evaluation records)?
Step 3: Calculate Deadline for Compliance In use or active storage Three working days Personnel or evaluation records Within 24 hours of receipt of request, Agency must: Determine whether records are exempt from disclosure AND Notify Requestor and Subject of Records of Agency's determination Step 4: Contact the Requestor Confirm receipt of request Determine whether Requestor is an Arkansas citizen Seek clarification, if needed, regarding parameters of request Request additional time for compliance, if necessary; confirm in writing Notify Requestor in writing if significant copying costs are anticipated
Step 5: Locate Records Do not overlook archived and electronic records Step 6: Analyze Records Is the record covered? Required by law to be kept or otherwise kept Performance or lack of performance of official functions Presumed to be a public record if: Maintained in public offices or by public employees Within the scope of their employment Do any exemptions apply? Statutory FOIA, including personnel and evaluation records Other state and federal statutes Constitutional See FOIA Handbook (17th ed.) and Common Exemptions Analysis, attached as Appendix A. BEWARE OF MIXED RECORDS Step 7: Redact Records, If Necesssary See FOIA Reference List, attached as Appendix B, for additional guidance on redactions.
Step 8: For Personnel or Evaluation Records, Notify Requestor and Subject of Records Must determine within 24 hours from receipt whether records are exempt from disclosure See FOIA Handbook (17th ed.), Common Exemptions Analysis and FOIA Reference List, attached as Appendices A and B. Must make efforts to fullest extent possible to notify Requestor and Subject of Records of decision See Sample Notification Language, attached as Appendix C. If subject cannot be contacted in person or by phone, must send written notice via overnight delivery to last known address Provide documents to subject of records in both the redacted and unredacted form so that subject can make informed decision whether to request an AG Opinion Custodian, Requestor, or Subject may immediately seek an AG Opinion Requests for AG Opinions must be sent by: Fax to (501) 682-8162 or Email to Cheryl.Hall@ArkansasAG.gov or Beth.Walker@ArkansasAG.gov. Records shall not be disclosed pending AG review
Step 9: Copy Records Can charge only cost of reproduction, including mailing or faxing costs (No automatic $.25 per page charge) Cannot charge for employee time May require advance payment if fee exceeds $25 Step 10: Disclose Records Maintain a copy of all records that are produced to requestor
Appendix A Common Exemptions Analysis PERSONNEL AND EVALUATION RECORDS Personnel Records All records pertaining to an employee that are not evaluation records DISCLOSE UNLESS doing so constitutes a "clearly unwarranted invasion of personal privacy" "Clearly Unwarranted" Test Step 1: Identify the Privacy Interest Is it personal or intimate? Is the interest minor? If yes, disclose the record. If no, proceed to Step 2. Step 2: Identify the Public Interest Does it shed light on government activities? Weigh public interest against privacy interest: Disclose record if equal or public interest outweighs
Evaluation Records Any records (1) created by or at the behest of the employer (2) to evaluate an employee (3) that details the employee's performance or lack or performance on the job Do Not Disclose UNLESS Employee has been suspended or terminated; Final administrative resolution of the termination or suspension; Records formed the basis for the suspension or termination; AND There is a compelling public interest in the disclosure Exemption Based on Constitutional Right to Privacy Constitutional privacy interest applies to matters that: (1) An individual wants to and has kept confidential; (2) Can be kept confidential but for the challenged governmental action in disclosing the information; and (3) Would be harmful or embarrassing to a reasonable person if disclosed. If the test is met, custodian must determine whether governmental interest in disclosure outweighs the privacy interest in withholding.
Appendix B FOIA Reference List This checklist collects information from statutes and Attorney General Opinions for the convenience of FOIA custodians. It is not all-inclusive and is intended to be used as a general guide. For additional information on exemptions and redactions, please consult the Arkansas Freedom of Information Act Handbook (17 th ed.) or contact your Assistant Attorney General. For a discussion of the general standards governing disclosure under FOIA, and personnel record and evaluation record exemptions, see AG Op. Nos. 2016-057 and 2016-018. Statutory Exemptions Contained in FOIA The FOIA contains 23 specific exemptions relating to public records. A.C.A. 25-19-105(b). For the text of these exemptions, see the FOIA Handbook (17th ed.). Contained in Other Statutes The FOIA is not all-inclusive. Other state statutes create exceptions to the open records provisions of FOIA. See FOIA Handbook (17th ed.), at 41. Redactions As examples, the following information should not be disclosed under FOIA and must be redacted if it constitutes a discrete part of a requested document: The Office of Driver s Services should not disclose driver s license abstracts and other discreet pieces of driver s license information that would be otherwise exempt from FOIA. AG Op. No. 2009-130. Name, address and phone number accessed through 911 information. Exemption not applicable to recordings of 911 calls, which are public record. AG Op. No. 2003-043. Work papers submitted to the Ark. Home Inspector Registration Board for action on complaints. A.C.A. 17-52-307.
If a record is supplied from U.S. Department of Health and Human Services Division of Select Agents and Toxins to Arkansas Department of Health, it is exempt from public discourse under 42 U.S.C. 262a(h). AG Op. No. 2008-144. Taped inmate disciplinary hearings; and inmates taped phone calls that are part of the inmate s Institutional File and Inmate Jacket. AG Op. No. 2004-248. Non-Exempt Information The following information is not exempt and must be disclosed: Expenditure and grant information from the Arkansas Economic Development Commission. A.C.A. 25-19-105(b)(9)(B). Law enforcement agencies records of the number of undercover officers and agency lists. A.C.A. 25-19-105(b)(10)(B). Complaints made to licensing and regulatory agencies about practitioners. AG Op. No. 2015-021. Employee-Related Records Personnel Records Definition Personnel records are all records other than employee evaluation and job performance records that pertain to individual employees. AG Op. 2016-018. Test Personnel records are exempt from disclosure to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. A.C.A. 25-19-105 (b)(12). Courts apply a two-part balancing test:
First, the custodian must assess whether information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimis privacy interest. If the privacy interest is merely de minimis, the thumb on the scale favoring disclosure outweighs the privacy interest. If the information does give rise to a greater than de minimis privacy interest, the custodian must determine whether that interest is outweighed by the public s interest in disclosure. Exceptions must be narrowly construed, and the person resisting disclosure bears the burden of showing that his privacy interests outweigh the public s interests. See AG Op. No. 2013-012. Redactions from Personnel Records The following information must be deleted from personnel records prior to the records release: Personal contact information of current and former non-elected state employees, nonelected municipal employees, non-elected school employees, and nonelected county employees contained in employer records. A.C.A. 25-19-105(b)(13). This includes home addresses, personal telephone numbers (home or mobile), and personal email addresses. Exemption not applicable to the custodian of records verifying an employee's city or county of residence or address on record upon request. A.C.A. 25-19-105(b)(13). Employee Personnel Numbers. AG Op. No. 2007-070. Date of Birth (including the year of birth). AG Op. Nos. 2007-070; 2007-064. Social Security Number. AG Op. Nos. 2006-035; 2003-153. Medical Information. AG Op. No. 2003-153. Driver s License Number. AG Op. No. 2007-025. All information on the driver s license except the photograph. AG Op. Nos. 2011-003; 2008-138.
On birth certificates, subject s date of birth and parents names. AG Op. No. 2008-053. Personal details of an employee s insurance coverage. This includes disability benefits, the amount deducted from the employee s compensation for insurance coverage and the number of dependents covered. However, the actual amount the agency pays for the employee s coverage is disclosable. AG Op. No. 2004-167. Tax Information or Withholding. AG Op. Nos. 2005-194; 2003-385. Payroll Deductions. AG Op. No. 98-126. Marital Status of Employees and Information about Dependents. AG Op. No. 2001-080. Child custody information. AG Op. No. 2008-163. Federal Income Tax Information. AG Op. No. 2008-163. Family financial arrangements or information about employee s family. AG Op. No. 2008-163. Garnishment records. AG Op. No. 2008-138. Tax information or withholding including records of an employee s gross earnings, net earnings, and tax deductions which could be used to calculate a withholding. AG Op. Nos. 2012-072; 2005-194; 2003-253. Amount of an Individual s Pension Benefits. AG Op. No. 2013-057. Unsuccessful job applicant s (who are already public employees) name, identifying characteristics, and interview scores. AG Op. No. 2012-146. Employee s Physical fitness for Duty Exam Scores. AG Op. No. 2012-145. Employee s Height and Weight unless a condition of employment. AG Op. No. 2015-008. Employee s Personal Banking Information. AG Op. No. 2005-194.
Criminal History that has been Expunged or Sealed by Court Order. AG Op. Nos. 2014-123; 97-177. Non-Exempt Information Items that are not exempt and may not be redacted from personnel records include: Public employees names, agency, dates of hire, job titles, pay grade, percentage of time worked, gender, salaries, work address, agency code, work telephone number, work fax number, and work email address. See, e.g., AG Op. Nos. 2012-01; 2011-125; 2007-070; 2004-225. Amounts paid for accrued leave. AG Op. No. 97-063. Compensation of a public employee. AG Op. No. 2004-167. Education backgrounds, including schools attended and degrees received. See AG Op. No. 2003-060 (stating that schools attended and degrees received should not be redacted but also stating that other scholastic records could be exempt). Pass/fail results of drug tests by law enforcement. AG Op. No. 2009-096. Work histories. AG Op. No. 2005-004, citing AG Op. No. 95-113. Employment offer and acceptance letter. AG Op. No. 2011-013. Attendance and leave records. AG Op. Nos. 2005-194; 2003-153; 97-063. Payroll forms documenting leaves of absence. AG Op. Nos. 2007-258; 2003-153. Documents related to any compensation a former public employee receives in addition to their regular paycheck. AG Op. No. 95-242. Contracts or agreements related to an employee s separation from employment. AG Op. Nos. 2014-137; 2012-041; 2012-024; 2007-003.
Notice of personnel action, where the notice contains no details of incidents giving rise to such action. AG Op. No. 2000-267. Job applications. A.C.A. 25-19-103(5)(A); AG Op. No. 2005-004. Resumes, including references, and prior employers. AG Op. Nos. 2001-368; 2001-091; 2006-165. Letters of recommendation. AG Op. No. 2003-381. Travel, expense, and reimbursement records after proper redactions have been made. AG Op. No. 2010-140. Unsolicited complaints by city employees (except as to information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy). AG Op. No. 2008-064. Photo of employee if the balance leans toward public disclosure over individual s right to privacy, unless another exception prohibits the release. AG Op. No. 2007-213. Public Employees Dates of Retirement and Reemployment. AG Op. No. 2010-131. Statements of Financial Interest. AG Op. No. 2012-103. Resignation Letters are usually considered personnel records, to be disclosed after appropriate redactions have been made. AG Op. No. 2012-144. Successful job applicant s name, identifying characteristics, and interview scores are personnel records but public interest dictates that they should be disclosed after other appropriate redactions have been made. AG Op. No. 2012-146. Transcripts containing only letter grades and no other identifying information. AG Op. No. 2012-083. Unsuccessful job applicant s (who are not already public employees) name, identifying characteristics and interview scores are public records and can be disclosed without redaction. AG Op. No. 2012-146.
Evaluation Records Definition Any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details the employee s performance or lack of performance on the job. Thomas v. Hall, 2012 Ark. 66. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. AG Op. 2016-018. Test Exemption only applicable if: Employee was suspended or terminated; There has been a final administrative resolution of the suspension or termination proceeding; The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; AND The public has a compelling interest in the disclosure of the records in question. A.C.A. 25-19-105(c)(1); AG Op. No. 2012-008. Compelling Public Interest The existence of a compelling public interest is always a fact question, but there is usually a compelling public interest in the disclosure of documents containing the following kinds of information: Violation of administrative rules or policies aimed at avoiding conduct that undermines the public trust. AG Op. No. 2008-09. Use/possession of drugs. AG Op. No. 2001-144.
Arrests and/or convictions. AG Op. Nos. 2003-257, 97-190 and 97-177). Violation of safety rules. AG Op. No. 2003-072, 2001-343, 92-319.
Appendix C Sample Notification Language Personnel And Evaluation Records Notice to Requester "This email is being provided to comply with A.C.A. 25-19- 105(c)(3)(A). This agency has received your Freedom of Information Act (FOIA) request, which encompasses the personnel records for [EMPLOYEE'S NAME]. We are gathering the nonexempt, responsive documents, which we intend to disclose. Pursuant to A.C.A. 25-19-105(c)(3)(B), we have notified the subject of those records that we intend to disclose his or her personnel records in response to your FOIA request. We will provide the records to you within the time constraints of the FOIA." Notice to Subject of Records "I have attempted to contact you by phone but have been unable to reach you. Someone has requested a copy of your personnel records under the Arkansas Freedom of Information Act (FOIA). We have gathered the responsive documents and intend to disclose the attached file by [DATE] at [TIME]. If you have any questions, please contact me by the close of business tomorrow."