Can a job applicant block release of her resume content under the Arkansas FOIA's personnel-records exception when she was not hired?

Plain-English summary

A journalist filed an Arkansas FOIA request to the Arkansas Department of Correction for all applications and resumes for a particular job opening. Stacy Lynch had applied for the job. Her resume listed several criminal cases she had worked on as a private investigator and included annotations of her work on those cases. She objected to release of those case-name portions, arguing disclosure served no public interest and could create hazards for her and her family. She asked the AG to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

Attorney General Leslie Rutledge concluded she lacked jurisdiction to review the dispute. The statute authorizing AG review of custodian decisions only covers personnel records and employee-evaluation records. A "personnel record" is one pertaining to an individual employee that is not an employee evaluation. Job applicants who are not hired are neither personnel nor employees, so their applications and resumes do not qualify as personnel records. The AG noted that the only possible basis for the custodian to redact would be the constitutional right of privacy recognized in McCambridge v. City of Little Rock, but that exception applies narrowly to "extremely personal information," and resolving that question was not within the AG's § 25-19-105(c)(3)(B)(i) review authority.

Currency note

This opinion was issued in 2016. 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.

How the personnel-record exception applies to applicants

The AG drew the line at the word "employee." The FOIA's personnel-records exception (Ark. Code Ann. § 25-19-105(b)(12)) shields records that would constitute a clearly unwarranted invasion of personal privacy. The Arkansas FOIA does not define "personnel record," but the AG's office has consistently used the working definition that a personnel record is one pertaining to an individual employee that is not an employee evaluation. An applicant who is not hired is not an employee, so the applicant's resume sits outside the exception.

There is some scholarly disagreement on this point. The AG flagged that Watkins and Peltz's treatise on the Arkansas FOIA disagrees with the AG's view, and noted that two trial courts had divided on the question. But the AG's office took the position that, applying the rule that FOIA exceptions are narrowly construed (Stilley v. McBride), the personnel-records exception covers only records of actual employees. Records of applicants generally must be disclosed.

The constitutional-privacy backstop

The AG explicitly noted that even if the personnel-records exception did not apply, the custodian could potentially redact the information based on the Arkansas constitutional right to privacy. In McCambridge v. City of Little Rock, the Arkansas Supreme Court recognized that the constitutional privacy right can supersede the specific disclosure requirements of the FOIA, at least with regard to documents containing constitutionally protectable information. The AG was clear this is "a narrow exception that only applies to extremely personal information."

But analysis of the constitutional-privacy claim is outside the AG's § 25-19-105(c)(3)(B)(i) review jurisdiction. The applicant would have to pursue that argument elsewhere, either by persuading the custodian directly or by going to court.

Common questions

Does this mean job applications are always public under the Arkansas FOIA?
Generally yes, subject to other FOIA exceptions and the constitutional-privacy doctrine. The personnel-records exception does not shield them because they are not records of an employee. If the applicant was eventually hired, her application would become part of her personnel file and would be analyzed under the Young v. Rice balancing test going forward.

What was the practical effect of the AG declining jurisdiction?
The applicant could not get an AG opinion blocking release. Her remaining options were to persuade the custodian directly that release would violate the constitutional privacy right under McCambridge, or to seek a court order.

Could the custodian release the resume right after the AG opinion?
The opinion's effect was advisory. The custodian's release decision would proceed under his or her own evaluation of the FOIA and constitutional privacy framework. Nothing in the opinion prevented release.

Source

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

Subject

Job applicant asks whether the Arkansas Department of Corrections' decision to release information on her resume concerning open criminal cases and cases currently under federal appeal is consistent w

Source

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

Official summary

Job applicant asks whether the Arkansas Department of Corrections' decision to release information on her resume concerning open criminal cases and cases currently under federal appeal is consistent with the Freedom of Information Act ("FOIA"). RESPONSE: Arkansas law authorizes me to review a custodian's decision with respect to personnel records and employee-evaluation records. A "personnel record" is any record that pertains to an individual employee that is not an employee evaluation. Since applicants, by definition, are neither "personnel" nor "employees," their job applications and resumes do not qualify as personnel records unless they are hired. This result is required by the rule that, when there is a reasonable doubt about an exception's meaning or application, the exception should be narrowly construed to exempt the fewest records. Since you were not hired for the position, the records in dispute do not qualify as personnel records or evaluations. Therefore, this dispute is beyond the scope of my review.

Original opinion text

Opinion No. 2016-004
January 19, 2016
Stacy M. Lynch
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o James DePriest, Chief Legal Counsel
Central Office, Legal Division
Arkansas Department of Correction
P. 0. Box 8707
Pine Bluff, AR 71611-8707
Dear Ms. Lynch:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request is based on Ark. Code Ann. § 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 a journalist has submitted a FOIA request to a
state agency "for all of the applications and resumes for" a particular job opening.
Because you have applied for this job, your resume and application are included in
the responsive records. You say that while you "have no problem" with releasing
most of your records, you object to the custodian's decision to release certain parts
of your resume. Specifically, you say that, having worked as a private investigator
for several years, your resume lists several criminal cases you worked on and
includes some annotations of your work on that case. You say that the disclosure
of these case names "would serve no public interest and could create potential
hazards for [you] and [your] family." You ask whether the custodian's decision to
disclose these parts of your resume is consistent with the FOIA.
RESPONSE
The only dispute here is whether a FOIA exception requires the custodian to
redact from your resume the names of cases on which you served as a private
323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Stacy M. Lynch
Opinion No. 2016-004
Page 2
investigator. I cannot resolve this dispute in the context of an opm10n under
section 25-19-105(c)(3)(B)(i). This statute authorizes me to review a custodian's
decision with respect to personnel records and employee-evaluation records. A
"personnel record" is any record that pertains to an individual employee that is not
an employee evaluation.1 Since applicants, by definition, are neither "personnel"
nor "employees," their job af plications and resumes do not qualify as personnel
records unless they are hired. This result is required by the rule that, when there is
a reasonable doubt about an exception's meaning or application, the exception
should be narrowly construed to exempt the fewest records.3 Since you were not
hired for the position, the records in dispute do not qualify as personnel records or
evaluations.4 Therefore, this dispute is beyond the scope of my review.
Nevertheless, I will simply note, for your reference, that the only basis on which
the custodian could redact the information in dispute is your constitutional right to
privacy. In McCambridge v. City of Little Rock, the Arkansas Supreme Court
recognized that the constitutional right of privacy can supersede the specific
disclosure requirements of the FOIA, at least with regard to the release of
documents containing constitutionally-protectable information. 5 But this is a
narrow exception that only applies to extremely personal information.6
LESLIE RUTLEDGE
Attorney General
1
See Op. Att'y Gen. No. 2015-034.
2 But see John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT
185-6 (Arkansas Law Press, 5th ed., 2009) (disagreeing with this view and noting that two trial
courts have divided on the question).
3 See generally Op. Att'y Gen. Nos. 2015-057, 2015-024; Stilley v. McBride, 332 Ark. 306, 313,
965 S.W.2d 125, 128 (1998).
4 See generally Op. Att'y Gen. No. 2012-146 (explaining why only public employees can have
personnel records or employee-evaluation records for purposes of the Ark. Code Ann. § 25-19-
10S(b )( 12) and (c)(l)).
5 McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).
6 See generally Op. Att'y Gen. No. 2012-085.