Little Rock: Blogger get's list of all non-resident city workers

PUBLISHERS NOTE: This article is dedicated to the focal example, subject and current motivation of it's inception, Little Rock Police Officer James "Jimmy Get Some" Stanchack.

Pre-post Warning UPDATE: Request for Attorney General's Opinion/City of Little Rock

by Ean Lee Bordeaux on Monday, August 29, 2011 at 10:33pm

per my post: https://www.facebook.com/ean.bordeaux/posts/270284759648582

Attorney Generals opinion: https://docs.google.com/document/d/1LxqyuQkYP4xQvdSrgZh2IgFYuKjqZClsB_TUGXITFCE/edit?hl=en_US&pli=1

August 29, 2011

Ms. Stacey Witherell

Labor and Employee Relations Manager City of Little Rock

500 West Markham, Suite 130W

Little Rock, Arkansas 72201-1428

Dear Ms. Witherell:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2009), which authorizes the custodian, requester, or the subject of personnel or employee evaluation records to seek an opinion from this stating Whether the custodian’s decision regarding the release of such records is consistent with the FOIA.

Your letter indicates that someone has requested “a list of city employees [Who] live outside Little Rock [c]ity limits.” The requester specifically Wants each employee’s “name, job position[,] and city/town.” You have decided to comply only partly with this request. Specifically, you plan (l) to release the names and job positions as personnel records; and (2) to withhold the city in which the employees reside. With respect to (2), you have concluded that, while the information requested is a personnel record, the release of that information would constitute a clearly unwarranted invasion of personal privacy, which means that FOIA requires it to be withheld from disclosure.

You have asked whether these decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state Whether your decision as custodian is consistent with the FOIA. Not having reviewed the record you intend to release, I cannot say

323 CENTER STREET, SUITE 200 LTTTLE ARKANSAS 72201 TELEPHONE (501) 682-2007 FAX (501) 682-8084 INTERNET WEBSITE - http://www.ag.state.ar.us/

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Stacey Witherell Opinion 2011-114 Page 2

whether that particular record contains only information that the FOIA permits custodians to disclose. But I can address, as a general matter, whether the kinds of information being sought are personnel records and whether they are subject to release. As explained below, in my opinion, your decision to disclose the employees’ names and positions is consistent with the FOIA. Likewise, your decision to withhold each employee’s city of residence is consistent with the FOIA, though you do not cite the correct reason for refusing to disclose it.

DISCUSSION

Every public record must be disclosed in response to an FOIA request unless a specific exception shields that record from disclosure. Because there is no question Whether the requested documents count as public records, the only remaining question is Whether some exception shields these records from disclosure. Two exceptions are relevant to your question.

Employees’ names and job positions The first is the personnel-records exception. While the FOIA does not define that term, this has opined that it refers to all records other than employee evaluation and job performance records that pertain to individual employees, former employees, or job applicants.1 Further, this has also consistently opined that employees’ names and job positions meet the defmition of a personnel record.2

Personnel records must be disclosed in response to an FOIA request unless doing so “constitute[s] a clearly unwarranted invasion of personal privacy.”3 This has consistently opined that, in the normal case, employees’ names and job positions are subject to disclosure under this standard.4

1 See, e. g., Op. Att’y Gen. N0. 1999-147; Watkins & Peltz, supra, at 187.

2 E. g., op. Att’y Gen. 2011-045.

3 A.C.A. § 25-19-105(b)(l2) (Supp. 2009).

4 E.g., op. Att’y Gen. 2011-045.

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Stacey Witherell Opinion 2011-114 Page 3

Therefore, your decision to classify the employees’ names and job positions as personnel records is consistent with the FOIA. And your decision to release those records is also consistent.

Public employees’ home addresses The second relevant exception is found at A.C.A. § 25-19-105(b)(13). This subsection exempts from disclosure all “home addresses of. . .none1ected municipal employees.” In my opinion, the exception for “home addresses” encompasses all components parts of a “home address”; namely, a street address, zip code, city, and county.5

Given that the FOIA requester wants you to give him “a list” of the cities in which all Little Rock’s public employees live, he is seeking information that subsection 25-19-l05(b)(13) protects from disclosure.

So you correctly refused to disclose where the employees live. But the reason that is the correct outcome is due most directly to subsection 25-19-l05(b)(13), not the exception, which is located at subsection 25-19-105(b)(12). This is because when a public record potentially qualifies for more than one exception—as a public employee’s home address arguably does—the more specific exception controls.6 Because subsection 25-19-105(b)(l3) deals specifically with home addresses, it controls.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby

approve.

5 Op. Att’y Gen. Nos. 2008-138, p. 3; 2005-194, p. 4.

6 This is an analogue to a standard principle of statutory construction, which requires that, when more than one statute deals with the same subject matter in different ways, the more specific statute controls. E. g., Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 492, 256 S.W.3d 496, 501 (2007) is blackletter law for statutory construction to give effect to the specific statute over the general.”).

Ms. Witherell,

As the opinion is clear, please remit the rest of my request in a reasonable time, made clear to me within three additional business days and transmitted via email please. It is very interesting to know that city personnel that live outside our city limits and decide on our quality of life here, have an additional expectation of privacy that those that choose to live in do NOT enjoy.

Request for Attorney General's Opinion/City of Little Rock  

   

Ms. Hall, please accept this email as my request for an Attorney General’s Opinion, as custodian of records for the City of   Little Rock  .  The request below was received by the Human Resources Department.  Although a list of names and job positions are clearly personnel records that are releasable after proper notification to the subject of those records, the city which the employee resides is clearly an invasion of privacy.  The public’s right to know where a city employee lives does not out weigh the employee’s right to privacy.  And home addresses of non-elected employees are exempt from disclosure (A.C.A. § 25-19-105(b)(13), and therefore the city of residence should be included in that exemption.  

   

Stacey Witherell  

City of   Little Rock    

Labor and Employee Relations Manager  

501-371-4549

Chief Bordeaux:  

   

Attached is the opinion that specifies that a city employee’s city of residence is not releasable.  Please let me know if you wish to pursue with the rest of your request.  Please be aware that under the Act, I will have to attempt to notify each of these employees of your request, before I can release the information.  

   

Stacey Witherell  

   

From:

 Cheryl Hall [mailto:CHERYL.Hall@arkansasag.gov] 

Sent: Monday, August 29, 2011 3:13 PM

To: Witherell, Stacey

Subject: RE: Request for Attorney General's Opinion/City of   Little Rock  

Importance: High  

   

For your convenience, I have attached a PDF copy of the opinion you requested from this office pursuant to the FOIA.  The original opinion has been mailed to your   Little Rock   office and a copy will be posted on the Attorney General’s website by close of business today.  Feel free to contact me or access the AG’s opinions search page at http://www.arkansasag.gov/opinions/ if you have difficulty accessing the attached document.  

   

From:

 Witherell, Stacey [mailto:SWitherell@littlerock.org] 

Sent: Wednesday, August 24, 2011 4:41 PM

To: Cheryl Hall

Subject: Request for Attorney General's Opinion/City of   Little Rock    

   

Ms. Hall, please accept this email as my request for an Attorney General’s Opinion, as custodian of records for the City of   Little Rock  .  The request below was received by the Human Resources Department.  Although a list of names and job positions are clearly personnel records that are releasable after proper notification to the subject of those records, the city which the employee resides is clearly an invasion of privacy.  The public’s right to know where a city employee lives does not out weigh the employee’s right to privacy.  And home addresses of non-elected employees are exempt from disclosure (A.C.A. § 25-19-105(b)(13), and therefore the city of residence should be included in that exemption.  

   

Stacey Witherell  

City of   Little Rock   

Labor and Employee Relations Manager

501-371-4549

From:

 Willy Dog [mailto:willydog101@gmail.com] 

Sent: Tuesday, August 23, 2011 3:25 PM

To: Shepard, Kelly

Subject: FOIA Req.

Please remit a list of city employees that live outside Little Rock City limits. I require the name, job position and city/town in which they reside.