AG Opinions

AAC AG OPINIONS AG Opinions: from military leave to release of employment information

AG OPINION NO. 2021-035

Ark. Code § 21-4-102 affords employees of the state and political subdivisions a certain number of days of paid leave to participate in optional training. The AG concluded that first responders and law enforcement positions of the cities, counties and state are allowed to take the leave of absence provided for voluntary or non-mandatory military training or service. The fact the employee is a first responder or law enforcement officer does not create an exclusion from the leave granted by the law. The city, county or state employer is required to keep the position open until the employee returns from the leave. The leave under the law is limited to 15 days, plus necessary travel time, during any one calendar year.

AG OPINION NO. 2021-054

The AG was faced with numerous questions involving several topics such as elections, campaign activities, the Freedom of Information Act (FOIA), and county election commissions. The AG determined the county clerk may not use poll books to verify signatures. Ark Code § 7-5-4040 requires the county clerk to verify applications for absentee ballots by comparing the signature on the ballot with signatures from the voter registration application. Denial of an absentee ballot is to be on the basis of comparison of the signatures of the voter registration application and the ballot. The AG reiterated the law prohibiting county employees from using government property to promote or oppose a campaign. The AG also noted that the election commission is allocated the duty responsible for designating the location where election officials may meet to canvass (interfering with that conduct should be avoided). As a general rule, the county judge’s custody and control over county property should not be used to unduly interfere with the free exercise and conducting of elections, such as lawfully established early voting sites, polling sites or election day vote centers. The AG noted that meetings of election commissioners are public meetings under the law and should be made open to the public. However, there may be reasonable restrictions such as limited seating or capacity limitations. The AG determined that when the election commission meets to conduct official business, including when it meets to canvass absentee ballots or to determine the validity of provisional ballots, such meetings are public meetings subject to the open meeting requirements of the FOIA. disclosing information on an employment application. The FOIA requested information from personnel records, however, the subject records included the back- Mark Whitmore ground check and charges that AAC Chief Counsel were nolle prossed and expunged/ sealed. As a general rule, the AG has consistently opined that a public servant’s criminal history is generally subject to disclosure under the FOIA unless the records have been sealed or expunged. Certain records in the subject request were nolle prossed and were sealed or expunged pursuant to Ark. Code § 25-19-906. Those particular records should therefore not be released and shall be redacted from the information provided to the requester. A few exceptions exist for release of expunged or sealed records, and those exceptions are set forth under Ark. Code § 16-90-1416(a) and 16-90-903(a).

The AG reiterated that even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. Some items that must be redacted include: • Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 2519-105(b)(13)); • Employee personnel number (Ops. Att’y Gen. 2014094, 2007-070); • Marital status of employees and information about dependents (Op. Att’y Gen. 2001-080); • Dates of birth of public employees (Op. Att’y Gen. 2007-064); • Social security numbers (Ops. Att’y Gen. 2006-035, 2003-153); • Medical information (Op. Att’y Gen. 2003-153); • Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10)); • Driver’s license number and photocopy of driver’s license (Ops. Att’y Gen. 2017-125, 2013-090); • Insurance coverage (Op. Att’y Gen. 2004-167); • Tax information or withholding (Ops. Att’y Gen. 2005-194, 2003-385); • Payroll deductions (Op. Att’y Gen. 98-126); and • Banking information (Op. Att’y Gen. 2005-194).