When someone applies for a job with an Arkansas public employer, are their interview scores released to other applicants under the FOIA?

Plain-English summary

Kathleen Thomas applied for a "Collection Systems Specialist" position with the City of Little Rock's Solid Waste Collection division. Another candidate applied for the same position and then filed an FOIA request for the interview-score sheets of both candidates. Thomas objected to the disclosure of her scores. The City sent a form letter saying the request was "releasable." Thomas asked the AG to review whether the City's release decision was consistent with the FOIA.

AG Dustin McDaniel said he could not opine on the specific records (he had not seen them), and the City had not explained its underlying classification or test analysis. The AG nevertheless laid out the three-category framework Arkansas uses for applicant scores. The category of any given applicant determines whether and how the FOIA exempts the records.

Category 1: Successful applicant. Name, identifying characteristics, and interview scores are personnel records. They are released. The two-part Young v. Rice balancing test almost always tips toward disclosure. Privacy interest in a winning score is "minimal, if there at all," and the public interest is in establishing that the most qualified applicant was actually hired.

Category 2: Unsuccessful applicant who is already a public employee. Same eligibility for the personnel-records exception, but the balance tips differently. The privacy interest in a losing score is arguably greater, and the public interest is weaker because the unsuccessful applicant is not assuming the new role. The standard practice is to redact the unsuccessful employee-applicant's name and release the scores. If the score could identify the applicant on its own (rare, but possible in small applicant pools), the score should be redacted too.

Category 3: Unsuccessful applicant who is not already a public employee. Names and scores are not redacted. The personnel-records exception does not apply at all because it is only available for "personnel records," and the Applicant Selection Record is not a personnel record of someone who is not (and is not becoming) an employee. There is no general privacy exemption in the FOIA outside the personnel-records context.

The AG flagged some disagreement about Category 3: two leading commentators (Watkins & Peltz) disagree with the analysis, and two lower courts have split. But the legislature has not amended the FOIA to change the rule. The AG describes this as "an issue for the legislature to resolve" and continues to apply the rule as stated.

The opinion does not opine on the specific custodian decision because the AG lacked key facts: whether Thomas was hired, whether the other candidate was a public employee, and so on. But the framework was provided so Thomas could apply it herself.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does the successful applicant have less privacy interest in scores than an unsuccessful applicant?
The successful applicant is publicly assuming the role with all its responsibilities. The public has a strong interest in knowing how the hiring decision was made and whether the most qualified person was selected. The unsuccessful applicant gets none of those public-facing duties, so the public interest in their score is weaker.

What about the privacy interest of an unsuccessful applicant who is not a public employee?
Under the AG's reading, the unsuccessful non-employee gets no FOIA exemption at all, because the personnel-records exception only protects "personnel records," and the Applicant Selection Record is not a personnel record of someone who is not (and did not become) an employee. The AG acknowledges this result is contested (Watkins & Peltz disagree; two lower courts split) but treats it as legislative-fix territory, not judicial-fix territory.

Could a constitutional right to privacy override the FOIA here?
The AG's predecessor considered McCambridge v. City of Little Rock and concluded the constitutional right of privacy did not protect the information at issue there. The opinion does not formally adopt or reject that conclusion, but treats it as the operating assumption.

What about applicants who had previously applied and were rejected, but later become employees?
The opinion does not specifically address this temporal wrinkle. The framework keys on whether the applicant was a public employee "at the time of the application/interview," not the present moment. But the framing leaves edge cases ambiguous (e.g., an applicant who was not an employee at the time of application but later becomes one in a different role).

If interview scores are released, can the agency be sued by an unsuccessful applicant?
The opinion does not address potential damages claims. The FOIA itself does not create a damages remedy for FOIA-compliant releases; suits over scoring disputes would have to rest on independent legal theories (defamation, employment discrimination, etc.) that are outside the scope of an FOIA-consistency review.

Background and statutory framework

The Arkansas FOIA, A.C.A. § 25-19-105(b)(12), exempts personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The exception only protects "personnel records," a term the FOIA does not define. The AG's longstanding reading: personnel records are records other than employee evaluation and job performance records that pertain to individual employees. The employee status is what gates the exception.

Young v. Rice establishes the balancing test. Step 1: does the information give rise to more than a de minimis privacy interest? Step 2: if yes, is the privacy interest outweighed by the public's interest, measured by what disclosure tells citizens about what their government is doing (Stilley v. McBride, citing Department of Defense v. FLRA)? The thumb is on disclosure throughout.

The AG cross-references Op. Att'y Gen. 2005-086 for the rule on successful applicants and Op. Att'y Gen. 2008-039 for the unsuccessful-employee applicant rule. Op. Att'y Gen. 2012-115 is the most-cited recent statement.

The non-employee applicant rule has a slightly tangled history. Act 608 of 1981 added a general privacy clause to the FOIA, but Act 468 of 1985 deleted it. The AG reads the legislative history as confirming that there is no general privacy exemption outside the personnel-records context, which is precisely what limits the exception to "personnel records" of employees.

The Watkins & Peltz disagreement is acknowledged but not adopted. The AG leaves resolution to the legislature.

Citations

• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request mechanism)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (personnel records balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (public interest measurement)
• Department of Defense v. FLRA, 510 U.S. 487 (1994) (what government is "up to" standard)
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989) (constitutional right of privacy)
• Waterworks v. Kristen Invest. Prop., 72 Ark. App. 37, 32 S.W.3d 60 (2000) (FOIA liberally construed)
• Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000) (narrow construction of exemptions)
• Op. Att'y Gen. 2009-156, 2009-096, 2005-086, 98-101, 2012-115, 2008-039, 2006-044 (applicant scores line)
• Watkins & Peltz, The Arkansas Freedom of Information Act (5th ed. 2009)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-127

November 17, 2014

Kathleen Thomas
c/o City of Little Rock
Solid Waste Collection
10805 Ironton Cutoff Road
Little Rock, Arkansas 72206

Dear Ms. Thomas:

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), which authorizes the custodian, requester, or the subject of personnel or employee evaluation records to seek an opinion from this office stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

Your correspondence indicates that you and another person were candidates for the position of "Collection Systems Specialist," and that the other candidate has made an FOIA request for the interview-score sheets for the two of you. It seems that you were a public employee at the time you applied for the position, but it is not clear whether the other candidate was. Nor is it clear whether you or the other person (or neither) were hired for the position. The custodian has sent you a form letter stating that someone "has requested information related to your personnel file" which the custodian has determined "is releasable."

You object to the disclosure of your test scores because you "do not wish to have" them "revealed."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen the records, I cannot opine about the disclosure of any specific document. Further, I have not been informed of certain key facts, which were identified above; and the custodian has only made a "disclosure" decision without explaining any of the preliminary decisions regarding how he has classified the records at issue or why he believes the test for disclosure has been met. While these discrepancies prevent me from definitively addressing the custodian's decision, I will explain how this office has treated score sheets of candidates for public employment.

DISCUSSION

A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld. The first two elements are clearly satisfied. Accordingly, the remainder of this opinion will focus on the third element, whether any exception shields the documents from disclosure.

The primary issue giving rise to this opinion request appears to be whether some exception shields from disclosure your interview scores assigned by each of the three interviewers (respectively). The answer to this question depends on which of three categories you fall into: (1) the successful applicant; (2) an unsuccessful applicant who was already (at the time of the application/interview) a public employee, or (3) an unsuccessful applicant who was not already a public employee.

The successful applicant

This office has consistently opined that the successful applicant's name, identifying characteristics, and interview scores qualify as "personnel records" under the FOIA. As noted in Opinion No. 2012-115, personnel records must be disclosed unless doing so "constitutes a clearly unwarranted invasion of personal privacy." Whether the release of some document rises to that level depends on the outcome of a two-part balancing test, which takes place with a thumb on the scale favoring disclosure.

The balancing test first requires one to assess whether the information contained in the personnel record is of a personal or intimate nature such that it gives rise to a greater than de minimus privacy interest. If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. According to the Arkansas Supreme Court, the public's interest is measured by "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.'"

Applying this two-part test to the successful applicant's information, this office has held that the balance weighs in favor of release. As for the first part of the test, this office has held that the successful applicant's interest in "keeping his or her prevailing score" and name undisclosed is "minimal, if there at all." And even if, depending on the circumstances, the interest is at least de minimus, the second step of the analysis would generally outweigh it. Specifically, this office has held that the second part of the test generally outweighs such a privacy interest when "the identifiable public interest is . . . to establish that the most qualified applicant was actually hired."

Given the foregoing, if you were the successful applicant, then the custodian's decision to release your name and interview scores is, in my opinion, consistent with the FOIA.

Unsuccessful applicants who are already public employees

But it is not clear whether you were the successful applicant. So we must continue the analysis with the second category: persons who are unsuccessful and who are already public employees. Because these applicants are already public employees, their names, identifying characteristics, and scores are eligible for the personnel-records exception, which was explained above.

But the two-part balancing test applies differently to these applicants than it does to the successful applicant. First, because the applicant was unsuccessful, the privacy interest in the specific interview scores is, arguably, greater. Second, the public's interest is not nearly as strong as in the case of the successful applicant because the unsuccessful applicant will not be assuming the new role with all its responsibilities. Because this balancing test generates slightly different results than the one for the successful applicant, this office has opined that the public's interest is generally satisfied by redacting the unsuccessful applicants' names before releasing their scores. But if, under the circumstances, it is reasonable to think that the unsuccessful applicant could be identified by his or her score alone, then it should also be redacted.

Unsuccessful applicants who are not already public employees

The final category of applicants is for those who are unsuccessful and who are not already public employees. This office has consistently opined that the personnel-records exception does not apply to these applicants:

[T]he names and scores of applicants who are not employees should not be redacted. The reason for this differentiation is that the "clearly unwarranted" standard applies only to "personnel records." The Applicant Selection Record is not the "personnel record" of any applicant who is not already an employee or who is not hired as a result of the application process. For those individuals, there is no exemption under the FOIA or any other law that would permit withholding this information from the public. I note that the Arkansas Supreme Court has steadfastly interpreted the FOIA liberally in favor of openness and has construed exemptions narrowly, so as to serve the FOIA's purpose of assuring that the public is "fully apprised of the conduct of public business." Waterworks v. Kristen Invest. Prop., 72 Ark. App. 37, 32 S.W.3d 60 (2000); Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000). I also note that the FOIA contains no general privacy exemption protecting personal information outside the personnel records context.

Two commentators on the FOIA disagree with this analysis, and two lower courts are divided on the issue. But this office has frequently noted this difference in the way the FOIA applies to job applicants, and the legislature has not amended the FOIA to address it. This is an issue for the legislature to resolve.

Because you (and the custodian) know which of the three foregoing categories you fall into, you should be able to apply the rules for the relevant category to determine whether the disclosure decision in this instance is consistent with the FOIA.

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

Attorney General

DM/RO:cyh