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The Issue
     "Personnel records"² of the various organizations and entities subject to the Arkansas Freedom of Information Act³ are generally open to inspection and copying. Such records are confidential only to the extent that their release would constitute a "clearly unwarranted invasion of personal privacy."⁴ The FOIA does not define this phrase. The Arkansas Supreme Court, however, has construed the phrase and adopted a balancing test to determine whether an individual has a protectable privacy interest in a particular personnel record. The balancing test essentially involves weighing the interests of the public in accessing the records against the individual's interest in keeping the records private.⁵ If the public's interest outweighs the individual's interest, the custodian of the records must disclose the records.⁶ On the other hand, if the individual's privacy interest is not insignificant, it may at some point dwarf the public's interest to such an extent as to render release of the records a "clearly unwarranted" invasion of privacy.
     The general balancing test for releasing personnel records has thus been identified. But what weighs in the balance? More specifically, what factors should a court look to in analyzing the public and private interests at stake? What "public" and "private" interests are to be considered?

The Cases
     A quick review of the only two cases of the Arkansas Supreme Court addressing the balancing test will be helpful in framing the issue. The court's pronouncements on how to apply the balancing test are expressed in two cases, Young v. Rice⁷ and Stilley v. McBride.⁸
     In Young, the court upheld the denial of access to the names of police officers participating in a lieutenant promotion examination, while allowing release of the requested examination records (with the police officers' names deleted). The court, after noting that the FOIA authorized certain "warranted" invasions of privacy, adopted a balancing test, stating that the "public's right to knowledge of the records [must] be weighed against an individual's right to privacy."⁹ The court stated that: "[b]ecause section 25-19-105 (b) [12] allows warranted invasions, it follows that when the public's interest is substantial, it will usually outweigh any privacy interest and disclosure will result."¹⁰ The court found a substantial public interest in Young, which it characterized as "the right to know that its safety is protected by competent and the best-qualified police lieutenants."¹¹ In Young, however, the court, relying on federal case law, also found a substantial privacy interest in the records. The court in Young noted that the federal courts had found a substantial privacy interest in records relating 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.¹² The court found that some of the actions of the police officers when taking the role-playing portion of the examination were "embarrassing behaviors" touching on intimate details of the candidates' lives, and the release of the information could subject them to embarrassment and perhaps threaten future employment. The court therefore found a substantial privacy interest in the records. As noted above, the court also found a substantial public interest in the records, but concluded that the public's interest was satisfied by the release of the examination records with the candidates' names deleted.
     In Stilley, the court upheld the decision of a lower court allowing the home addresses of certain city police officers to be withheld from disclosure. Stilley involved an FOIA demand for the home addresses of two Fort Smith police officers. In reaching its decision, the court employed the Young v. Rice balancing test.¹³ In considering the "public interest" prong of the balancing test, however, the court followed the U.S. Supreme Court decision in Department of Defense v. FLRA¹⁴ (interpreting the federal FOIA law),¹⁵ and examined the degree to which the release of address information would serve the purpose of the FOIA. That purpose, the court stated, is to keep the citizens of the state "advised of the performance of their public officials."¹⁶ The court found that the purpose for which the addresses were requested in Stilley (i.e., to enable the requester to obtain service of process on the individuals in a federal lawsuit), did not further the purpose of the FOIA. The court noted that the plaintiff's "sole reason for requesting [the officers'] addresses was to utilize a cheaper method of obtaining service of process on the officers."¹⁷ "The reason given by Stilley for requesting home addresses of police officers - has little or nothing to do with learning or reporting the officer's activities."¹⁸ For this reason, the court found a relatively insubstantial public interest in the records, which was, on balance, outweighed by the privacy interest in withholding them from disclosure. In considering the "privacy interest" prong of the balancing test, the court found that the city had met its burden of proving that the addresses should not be released by presenting arguments concerning the police officers' expectations of their families' safety at home and concerning the potential harassment or nuisance of people visiting or contacting officers at home. These concerns, the court held, outweighed the negligible public interest in the requested records. The records were therefore properly withheld from disclosure.
     A couple of initial conclusions can be drawn from the two cases and from the nature of the balancing test. First, given that exemptions from disclosure must be narrowly construed,¹⁹ it is the burden of an individual resisting disclosure of personnel records to establish that his or her privacy interests outweigh that of the public's under the circumstances.²⁰ Second, it should be noted that the personnel records test is not an equal balance. There is a thumb on the scale in favor of public access. Such personnel records are open to public inspection and copying unless their release would be a "clearly" unwarranted invasion of personal privacy.²¹
     With these preliminary issues stated, more difficult issues arise in how to approach the private and public interests at stake.

The Public's Interest
     With regard to the characterization of the public's interest, the Arkansas Supreme Court's decision in Stilley is troubling in several respects. First, the U.S. Supreme Court's requirement in Department of Defense v. FLRA,²² that records reflect the performance of agency functions or otherwise "shed light on the workings of government" in order to weigh in the balance, must be applied with care so that the court does not undermine the presumption in favor of openness or shift the burden of proof to the requester. Second, this Department of Defense V. FLRA analysis, although important in determining the relative balancing of interests, should not be employed as a prerequisite to the release of records. Third, the court in Stilley, in assessing the public's interest, impermissibly focused solely on the plaintiff's reason for requesting the records, not the broader public interest that might be served by releasing them.
     With regard to the first concern, the Stilley court relied on the U.S. Supreme Court's conclusion in FLRA that its duty was to determine the extent to which disclosure of the information sought would "shed light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to."²³ As an initial matter, this affirmative showing seems contrary to the general notion that all public records are subject to inspection and copying under the FOIA and are only exempt to the extent of any exemption.²⁴ The laudable purposes of the FOIA and the Act's presumption that certain records are public are not served by a test that requires requestors to prove their right to access.²⁵ In addition, this required showing should not have the effect of unduly shifting the burden of proof to the requester to prove the right to access. As noted above, the burden should be on the individual resisting disclosure.²⁶ Without expressly discussing any applicable burden of proof, the Arkansas Supreme Court in Stilley appeared to rely solely on the plaintiff's reason for requesting the information as evidence of the public's interest, instead of looking more broadly or theorizing itself what that interest might be. The court did not take this same approach in Young, where it characterized the public's interest as "the right to know that its safety is protected by competent and the best-qualified police lieutenants" even though this was likely not the requestor's interest.²⁷ It is unclear from the Young decision whether the requester put forward proof of this public interest or whether the court merely recognized it as apparent. In any event, the court should clarify what, if any, burden of proof is placed on the requester of records to prove the public's interest.
     With regard to the second concern, it should be emphasized that any required showing that the records shed light on or reflect the workings of government should not be a prerequisite to the release of the records. The only purpose of this inquiry should be to determine the importance or heft of the public's interest in the information, so that it may be weighed against the individual's privacy interest.²⁸ It should not, however, be the sine qua non of whether records will be released. That is, even if the disclosure of the records would reflect little about the agency's performance of its duties or "what [the] government is up to," the records still should be subject to release if the privacy interest does not outweigh the public's small interest.²⁹
     With regard to the third concern (the Stilley court's focus on the requestor's individual reason for seeking the records), the court noted that "[t]he reason given by Stilley for requesting home addresses of police officers - [service of process] has little or nothing to do with learning or reporting the officers' activities."³⁰ This narrow focus is troubling and contrary to the long-held view that the motive of an FOIA requester is ordinarily irrelevant to the analysis.³¹ The Court in Department of Defense V. FLRA itself cited with approval language of an earlier case, Department of Justice v. Reporters Comm. For Freedom of Press,³² to the effect that "'whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.'³³ 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]' . . . 'the identity of the requesting party has no bearing on the merits of his or her FOIA request.'"³⁴ The Court also stated that "all FOIA requestors have an equal, and equally qualified, right to information. . . ."³⁵ "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' . . . rather than on the particular purpose for which the document is being requested."³⁶ 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."³⁷
     It has been stated that the Arkansas Supreme Court "erred" by not more broadly assessing the public's interest in the police officer's addresses at issue in Stilley.³⁸ The lone focus on the plaintiff's reason for requesting the record leaves open the door to custodians and reviewing courts selecting among requesters, as Justice Ginsburg noted above. The court should clarify this point at the next opportunity.

The Privacy Interest
     It reasonably follows from the plain language of A.C.A. § 25-19-105 (b) (12) that a protectable privacy interest must exist in order for the balancing process to apply. As for the type of information that may be protected, the U.S. Supreme Court has observed with regard to the federal FOIA privacy exemptions that "both the common law and the literal understanding of privacy encompass the individual's control of information concerning his or her person."³⁹ This may accurately frame the general concept of "personal privacy" for purposes of Arkansas's personnel records exemption.⁴⁰ Additionally, it has been observed that the information must be of a "personal or intimate nature sufficient to give rise to a substantial privacy interest."⁴¹ This likely follows, as a practical matter, from the "clearly unwarranted invasion" limitation which, as noted above, establishes an unequal balance with respect to personnel records. And we know from Young and Stilley that "intimate details" of an embarrassing nature⁴² and information with a potential for "harassment or nuisance"⁴³ are the types of factors that our court has identified as implicating a substantial privacy interest. This is also clear from the federal cases.⁴⁴ Opinions of the Attorney General also reflect the view that the personnel records exception will not apply in the absence of some distinguishing factor evidencing a substantial privacy interest.⁴⁵
     It also seems clear that determining whether a viable privacy interest exists requires an objective analysis. That is, the fact that the subject of the records may consider the release of the records to be a "clearly unwarranted invasion of personal privacy" is not the proper test.⁴⁶ Rather, the personal nature of the information should be examined under a "reasonable man" standard.⁴⁷ This does not mean, however, that it is improper to consider the facts surrounding the individual employee in question. After all, this side of the balancing test involves an analysis of the "personal" privacy of the individual. Consequently, individual circumstances are necessarily relevant.⁴⁸

The Balance
     When considering the balancing test that applies under A.C.A. § 25-19 105 (b) (12), it is initially important to note that the public interest in the release of a personnel record automatically exists once it is established that the record is a "public record."⁴⁹ Consequently, even if there is minimal public interest in the record, disclosure is required if the privacy interest is also minimal. As stated by one commentator: "[i]f the privacy interest is de minimis, there is no need to proceed further with the analysis, and the information is disclosable."⁵⁰ Additionally, even a modest public interest will weigh in favor of disclosure unless the privacy interest is substantially heightened.⁵¹
     If it is established that a substantial privacy interest exists, it is then necessary to determine whether such interest is outweighed by a counter balancing public interest. Several general observations may assist in making this determination. First, as the court noted in Stilley, if there is "little relevant public interest" in the information, then the privacy interest will prevent disclosure as long as it is "not insubstantial."⁵² Second, a substantial public interest will in most cases outweigh the privacy interest.⁵³ The court may, however, protect the privacy interest by redacting identifying information prior to the record's release.⁵⁴ Finally, if it is determined that the interests are of equal weight, then disclosure is required in light of the fact that the balance is tipped in favor of disclosure under the "clearly unwarranted" test.
     It becomes apparent the balancing process is somewhat ad hoc, and that the personnel records custodian will at times be faced with difficult decisions in balancing the public and private interests at stake. Some guidance can be gleaned from Attorney General opinions and the few reported Arkansas cases. Ultimately, however, the outcome will be driven by the particular surrounding circumstances.

Endnotes
1. The opinions expressed in this article are those of the authors and not     necessarily those of the Attorney General's office.
2. The FOIA does not define the term "personnel records." Whether a particular     record constitutes a "personnel record" within the meaning of the FOIA is a     fact question that can only be determined upon a review of the actual record.     The Attorney General has, however, consistently taken the position that     "personnel records" are all records other than employee evaluation and job     performance records that pertain to individual employees, former employees,     or job applicants. See, e.g., Op. Att'y Gen. 99-147, citing J. Watkins, The     Arkansas Freedom of Information Act (m & m Press, 3rd ed. 1998) at 134.
     So-called "employee evaluation" and "job performance" records are subject to     a separate test for disclosure that is outside the scope of this article. See     A.C.A. § 25-19-105 (c) (Supp. 2003) and generally Op. Att'y Gen. 2000-130.
3. Hereinafter "FOIA" (A.C.A. §§ 25-19-101 ­ 109 (Repl. 2002 & Supp. 2003)).
4. A.C.A. § 25-19-105 (b) (12) (Supp. 2003). This is the only privacy provision in     the FOIA. A 1981 act added a clause to the FOIA to provide a general privacy     exemption for information "of a personal nature." Acts 1981, No. 608, § 1. That     clause was repealed, however, by Act 468 of 1985. This is not to say that     there is no protection from the disclosure of non-personnel records when such     disclosure would invade personal privacy. As stated in J. Watkins & R. Peltz,     The Arkansas Freedom of Information Act (m & m Press, 4th ed. 2004), cited     hereinafter as "Watkins & Peltz": "disclosure of records that would invade a     person's constitutional right to privacy is impermissible, and the FOIA should     be interpreted accordingly." Watkins & Peltz at 241 (emphasis added). The     constitutional privacy right also requires a balancing of interests; but it appears     that the constitutional privacy test is not easily satisfied. Id. at 241-44     (discussing McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d     909 (1989), and observing that "[o]nly information that is 'extremely personal'     in nature is likely to satisfy the [constitutional] test.") For further discussion of     the constitutional privacy analysis, see Watkins & Peltz, supra.
5. See Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
6. Id. at 598.
7. Id.
8. 332 Ark. 306, 313, 965 S.W.2d 125 (1998).
9. 308 Ark. at 598.
10. Id.
11. Id.
12. The court cited Brown v. FBI, 658 F.2d 71 (2d Cir. 1981).
13. Such addresses would now be exempt under A.C.A. § 25-19 105(b)(13)     pursuant to Act 213 of 2003.
14. 510 U.S. 487 (1994).
15. The federal act contains an exemption for "personnel and medical files and     similar files the disclosure of which would constitute a clearly unwarranted     invasion of personal privacy." 5 U.S.C. § 552(b)(6).
16. 332 Ark. at 314.
17. Id. at 314.
18. Id.
19. 308 Ark. at 596.
20. 332 Ark. at 313.
21. See Op. Att'y Gen. 2002-087, citing Op. Att'y Gen. 90-335.
22. 510 U.S. 487 (1994).
23. Id. at 497.
24. Id. at 507 (Ginsburg, J. concurring).
25. See A.C.A. § 25-19-103 (5)(A)("All records maintained in public offices or by     public employees within the scope of their employment are presumed to be     public records.")
26. Although the Arkansas Supreme Court has not specifically addressed a     requester's burden of proof under the Arkansas FOIA in this regard, the United     States Supreme Court, in construing an analogous but broader exemption,     requires the requester to show that the public's interest is "significant" and     that the information is likely to advance that interest in order to overcome a     colorable privacy interest. See National Archives and Records Administration     v. Favish, 541 U.S. ___ (Supreme Court 02-954, March 31, 2004).
27. 308 Ark. at 598. In Young, the plaintiff was a fellow police officer taking the     examination in question.
28. Assessment of the importance of the public's interest is only necessary     under the Arkansas FOIA in the context of the personnel records balancing     test, in order to determine whether the public's interest outweighs a privacy     interest of the individual. With regard to other types of records, the public's     interest exists by operation of law (by the adoption of the FOIA), and the only     relevant inquiry is whether the records are covered by any applicable     exception. Cf. National Archives and Records Administration v. Favish, supra     at 13.
29. Compare again, Department of Defense V. FLRA, 510 U.S. 487, 507 (1994)     (Ginsburg, J. concurring).
30. 332 Ark. at 314.
31. See Op. Att'y. Gen. 2002-067 (" . . .the 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"). See also, Ops. Att'y Gen. 98-186, 96-309, and 92 289.
32. 489 U.S. 749 (1989).
33. Id. at 771.
34. 510 U.S. at 496.
35. Id. at 499.
36. 489 U.S. at 772. 37. 510 U.S. at 508.
38. Watkins & Peltz, supra at 193.
39. Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.     at 763.
40. Reporters Comm. was cited with approval in Department of Defense V.     FLRA, supra, which our court reviewed at length in deciding Stilley.
41. Watkins & Peltz at 183, citing Young. See also Stilley at 312 (suggesting     that an "insubstantial" privacy interest will not suffice).
42. 308 Ark. at 598.
43. 332 Ark. at 314.
44. As noted in Young: "The federal courts have found that a substantial privacy     interest exists 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." 308 Ark. at 598,     citing Brown v. FBI, supra at n. 12.
45. See Op. Att'y Gen. 96-005 (concluding that photograph of police officer and     any information in personnel file that could personally identify him should not     be released because of his recent status as an undercover officer). See also     Ops. 98-101 and 97-286.
46. See, e.g., Op. Att'y Gen. 2003-325 and opinions cited therein. Accord     Watkins & Peltz at 183, n. 398.
47. See Watkins & Peltz at 183, n. 398 (citing McCambridge v. City of Little     Rock, supra at n. 4 (regarding the constitutional right to privacy).
48. The U.S. Supreme Court in Reporters Comm. diverged from this approach     and determined that for an appropriate class of law enforcement records,
    so-called "categorical balancing" may be undertaken and individual     circumstances disregarded. 489 U.S. at 776-80. The ruling appears to be     limited, however, to the federal FOIA's law enforcement exemption (5 U.S.C.     552(b)(7)(C)), owing to the broader language of that provision as compared to     the comparable federal language applying to personnel, medical and similar     files. (552(b)(6)). Id.
49. The FOIA's definition of "public records" encompasses all records "required     by law to be kept or otherwise kept and that constitute a record of the     performance or lack of performance of official functions that 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." A.C.A. § 25-19-103 (5) (A) (Supp. 2003). It further provides that "[a]ll     records maintained in public offices or by public employees within the scope of     their employment shall be presumed to be public records." Id.
50. Watkins & Peltz supra at 183, n. 401 (citing several Attorney General     Opinions and National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d     873, 874 (D.C. Cir. 1989). See also Op. Att'y Gen. 2004-225.
51. See, e.g., Ops. Att'y Gen. 90-335 and 2002-087 (concerning the release of     public employees' home addresses).
52. 332 Ark. at 312.
53. 308 Ark. at 598.
54. Id. The constitutional right to privacy, discussed by our court in     McCambridge, supra, may also dictate this result. According to     McCambridge, information rises to the level of constitutional protection if it has     been kept confidential by the individual, it can be kept confidential but for the     challenged governmental action in disclosing the information, and it would be     harmful or embarrassing to a reasonable person if disclosed. 298 Ark. at 230.•