Arkansas Attorney General Opinion 2026-110 — Ms. Laura Holzhauer

B OB R. BROOKS J R . J USTICE B UILDING 101 WEST C APITOL AVENUE LITTLE R OCK , ARKANSAS 72201 Opinion No. 2026-110 October 8, 2026 Laura Holzhauer Arkansas Department of Agriculture 1 Natural Resources Drive Little Rock, Arkansas 72206 Dear Ms. Holzhauer: You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the custodian of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion stating whether the custodian’s decision regarding the release of such records is consistent with the FOIA. The Arkansas Department of Agriculture received a FOIA request for the personnel file of employee Stephanie Alsbrook. You have provided me with redacted and unredacted copies of the records you intend to release. Ms. Alsbrook has requested an opinion on whether your decision is consistent with the FOIA. RESPONSE In my opinion, your decision to release the records as redacted is consistent with the FOIA. The records at issue are properly classified as personnel records, and you have correctly determined that they are subject to release with redactions. DISCUSSION 1. General rules. A document must be disclosed in response to a FOIA request if (1) the request was directed to an entity subject to the FOIA, (2) the requested document is a public record, and (3) no exceptions allow the document to be withheld.1 1 Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.

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Laura Holzhauer Opinion No. 2026-110 Page 2 The first two elements appear to be met. The request was made to the Arkansas Department of Agriculture, which is a public entity subject to the FOIA. And the records at issue appear to be public records.2 Because these records are held by a public entity, they are presumed to be public records,3 although that presumption is rebuttable.4 Given that I have no information to suggest that the presumption can be rebutted here, I will focus on whether any exemptions prevent the documents’ disclosure. For purposes of the FOIA, employees’ personnel files5 typically contain two distinct groups of records: “personnel records” and “employee-evaluation or job-performance records.” Personnel records are records that pertain to an individual employee and were not created by or at the behest of the employer to evaluate the employee.6 Employee- evaluation and job-performance records, on the other hand, are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee’s performance or lack of performance on the job.7 The test for whether these two types of documents may be released differs significantly. Thus, the custodian must first decide whether a record meets the definition of either a “personnel record” or an “employee-evaluation or job-performance record” and then apply the appropriate test for that record to determine whether the record should be released under 2 The FOIA defines public records as “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 that constitute a record of the performance or lack of performance of official functions … carried out by a public official or employee.” A.C.A. § 25-19-103(15)(A). 3 Id. 4 See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.”’ (quoting Ark. Att’y Gen. Op. 2005-095)). 5 “Personnel files” are not referenced in the FOIA but typically include the following documents: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health- and life-insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g. Ark. Att’y Gen. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017). 6 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147. 7 Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-evaluation records developed by the Attorney General’s Office); Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, 93-055.

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Laura Holzhauer Opinion No. 2026-110 Page 3 the FOIA. In this instance, it is apparent that the records at issue are properly classified as personnel records. I will, therefore, limit my discussion to records of that type. 2. Personnel records. A personnel record is open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”8 While the FOIA does not define the phrase “clearly unwarranted invasion of personal privacy,” the Arkansas Supreme Court has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public’s interest in accessing the records against the individual’s interest in keeping them private.9 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps.10 First, the custodian must assess whether the 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.11 If the privacy interest is minimal, then the records should be disclosed. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public’s interest in disclosure.12 Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, the employee’s privacy interests outweigh the public’s interest.13 The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.14 Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted,15 such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses);16 employee personnel numbers or identification codes;17 marital status of 8 A.C.A. § 25-19-105(b)(12). 9 308 Ark. 593, 826 S.W.2d 252 (1992). 10 Watkins et al., supra note 5, at 208. 11 Young, 308 Ark. at 598, 826 S.W.2d at 255. 12 Id. 13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 14 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 5, at 207. 15 A.C.A. § 25-19-105(f). 16 Id. § 25-19-105(b)(13). 17 Ark. Att’y Gen. Ops. 2022-032, 2014-094, 2007-070. Public employee personnel numbers are exempt from disclosure because “these numbers presumably provide access to computerized data, and records

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Laura Holzhauer Opinion No. 2026-110 Page 4 public employees;18 information about children and dependents;19 dates of birth of public employees;20 Social Security numbers;21 driver’s license numbers;22 insurance coverage;23 tax information or withholdings;24 payroll deductions;25 net pay;26 banking information;27 and other financial “records that would divulge intimate financial detail.”28 3. Application. You have properly redacted certain discrete pieces of information from Ms. Alsbrook’s personnel records, including her Social Security number, personal contact information, date of birth, personnel number, banking and financial information, marital status, retirement information, family information, and driver’s license number. Accordingly, it is my opinion that your decision to release the records with redactions is consistent with the FOIA. Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve. Sincerely, TIM GRIFFIN Attorney General containing ‘personal identification numbers’ used for computer security functions are specifically exempt from disclosure under the FOIA.” Ark. Att’y Gen. Op. 2022-032; see also A.C.A. § 25-19-105(b)(11). 18 Ark. Att’y Gen. Op. 2001-080. 19 Ark. Att’y Gen. Ops. 2018-084, 2018-083, 2001-080. 20 Ark. Att’y Gen. Op. 2007-064. 21 Ark. Att’y Gen. Ops. 2006-035, 2003-153. 22 Ark. Att’y Gen. Op. 2007-025. 23 Ark. Att’y Gen. Op. 2004-167. 24 Ark. Att’y Gen. Ops. 2005-194, 2003-385. 25 Ark. Att’y Gen. Op. 98-126. 26 Ark. Att’y Gen. Ops. 2018-064, 2018-015, 2002-043, 98-126. 27 Ark. Att’y Gen. Op. 2005-194. 28 Ark. Att’y Gen. Ops. 2005-194, 98-126, 95-242, 95-110, 94-235, 91-093, 87-422.

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