Can an Arkansas state employee block a FOIA request for their job application and resume, including the names and addresses of their previous employers?

Plain-English summary

Aaron Johnson, a TANF Program Supervisor at the Arkansas Department of Workforce Services (ADWS), invoked his statutory right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether the custodian's decision to release his job application and resume was consistent with the FOIA. Someone had requested his ADWS application, the custodian had decided to release a redacted version of both the application and the attached resume, and Johnson objected to two specific elements: the names and addresses of his previous employers listed on the application, and the resume as a whole, which he characterized as an optional attachment that the requester had not specifically sought.

AG Leslie Rutledge concluded the custodian was right. Three points anchored the opinion:

1. The records are public records under the FOIA. Job applications and accompanying resumes, held by a public employer, fall within the FOIA's broad definition of public records under § 25-19-103(5)(A).

2. The applicable exception is the "personnel records" exception under § 25-19-105(b)(12), and the Young v. Rice balancing test applies. That test puts a thumb on the scale favoring disclosure: the privacy interest must be greater than de minimis, and if it is, the custodian must still weigh it against the public's interest in disclosure. The custodian carries the burden of proving an exemption (Stilley v. McBride). Names and addresses of previous employers go to professional experience and qualifications, in which the public has a significant interest. The AG concluded their release is not a "clearly unwarranted invasion of personal privacy."

3. The resume is a public record too. The AG made two distinct observations about Johnson's resume objection. First, on the substance: a public employee's resume held by the employer is generally a non-exempt public record. The custodian's decision to release the resume as redacted was consistent with the FOIA. Second, on Johnson's argument that the requester had not asked for the resume: the AG could not address that. The AG's statutory duty under § 25-19-105(c)(3)(B) is to opine on whether the records are exempt from disclosure, not on whether a specific document is responsive to a specific request. Identifying responsive records is the custodian's job. Finally, the AG flagged a recurring rule that runs through FOIA practice: a requester's motive or reason for asking is irrelevant to whether a public record must be released.

The AG's opinion noted in a footnote that one record dated "6-7-13" might fall under the more restrictive "employee evaluation or job performance" exception of § 25-19-105(c)(1), depending on whether it was created by or at the behest of the employer to evaluate Johnson. That is a question of fact for the custodian, applying Thomas v. Hall's three-part test. Because Johnson was not suspended or terminated, the evaluation exception (which requires a suspension or termination as a threshold) could block release of that one record if it qualified.

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.

Background and statutory framework

Two employee-records exceptions, two different tests

The Arkansas FOIA carves employee records out of the default openness rule through two distinct exceptions:

• Personnel records (§ 25-19-105(b)(12)). Open to the public unless disclosure would constitute "a clearly unwarranted invasion of personal privacy." The custodian applies the Young v. Rice balancing test on each record.
• Employee evaluation or job performance records (§ 25-19-105(c)(1)). Closed by default, even when no privacy concerns exist. Open only when (i) the employee was suspended or terminated, (ii) there has been a final administrative resolution of that proceeding, (iii) the records formed a basis for that decision, and (iv) there is a compelling public interest in disclosure.

Whether a record is a personnel record or an employee-evaluation record is a question of fact. Thomas v. Hall defined an employee-evaluation record as one (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details the employee's performance or lack of performance on the job. Anything that does not meet that three-part test, but still pertains to an individual employee, is a personnel record.

Why job applications and resumes are personnel records, not employee-evaluation records

Job applications and resumes pre-date the employment relationship, so they cannot have been created by or at the behest of the employer to evaluate the existing employee. They are background documents about the person's pre-hire experience. They fall on the personnel-records side of the line, which means the Young v. Rice balancing test (with a thumb on the scale favoring disclosure) applies, not the Thomas v. Hall four-prong test.

The Young v. Rice test, applied to Johnson's specific objection

Under Young, the custodian first asks whether the information at issue is of a personal or intimate nature giving rise to a privacy interest above the de minimis level. If not, the thumb on the scale tips the result toward disclosure. If yes, the custodian weighs the privacy interest against the public's interest in disclosure.

Johnson objected to the names and addresses of his previous employers. The AG treated that information as professional experience and qualifications, not personal or intimate information. The public has a real interest in knowing the prior employment background of a state employee. The thumb on the scale favors disclosure, and the privacy interest does not overcome it. Release as redacted is consistent with the FOIA.

The AG did not address whether the redactions were correctly done. That fell within the custodian's purview. Standard redactions in personnel records under prior AG opinions include dates of birth, Social Security numbers, medical information, driver's license numbers, banking information, home addresses (under § 25-19-105(b)(13)), and personal email addresses.

Requester motive is irrelevant

Johnson's argument that the requester did not specify the resume in the FOIA request mixed two different ideas. The FOIA does not require requesters to explain why they want records, and the requester's motive (or lack of stated reason) is irrelevant to whether a record must be released. But whether a specific document is in fact responsive to the request is a separate factual question. The AG's role under § 25-19-105(c)(3)(B) is limited to the exemption analysis; the responsiveness question stays with the custodian.

Common questions

Q: Can a public employee in Arkansas block release of their job application under the FOIA?
A: Generally no. Job applications held by a public employer are personnel records under the FOIA. The custodian applies the Young v. Rice balancing test, and standard application content (employment history, qualifications, prior-employer names and addresses) does not create a privacy interest strong enough to overcome the public's interest in seeing the records.

Q: Are the names and addresses of my previous employers protected from FOIA disclosure?
A: Under this opinion, no. The AG treated that information as professional experience and qualifications. The public has a significant interest in seeing it, and releasing it is not a "clearly unwarranted invasion of personal privacy."

Q: What about my resume? Is that a public record?
A: A resume held by a public employer is generally a non-exempt public record. Releasing it as redacted is consistent with the FOIA.

Q: What gets redacted from a personnel record before release?
A: Standard redactions include date of birth, Social Security number, medical information, driver's license number, insurance coverage, tax information, payroll deductions, banking information, home address, unlisted phone number, personal email address, and information about dependents. These come from a long string of AG opinions cited in the parallel Op. Att'y Gen. 2014-109 that the AG attached.

Q: Can the requester refuse to tell me why they want my application?
A: Yes. Requester motive is not part of the FOIA analysis. If the record is a public record and no exception applies, the custodian must release it without inquiring into why the requester wants it.

Q: What if the record is actually an employee evaluation, not a regular personnel record?
A: Then a different rule applies. Under § 25-19-105(c)(1) and Thomas v. Hall, an employee-evaluation record stays closed unless the employee was suspended or terminated, the evaluation record formed a basis for that decision, the administrative process has concluded, and there is a compelling public interest in disclosure. Whether a particular record is an evaluation record is a question of fact for the custodian.

Citations and references

Statutes:

• A.C.A. § 25-19-103(5)(A) (Supp. 2015) (definition of public record)
• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2015) (AG opinion procedure for personnel and evaluation records)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records exception)
• A.C.A. § 25-19-105(b)(10) (undercover law enforcement)
• A.C.A. § 25-19-105(b)(13) (home addresses of most public employees)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (burden on custodian to prove exemption)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (three-part test for evaluation records)

Source

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

Official summary

Is the decision of the custodian of records to disclose an employee's job application in response to a Freedom of Information Act (FOIA) request consistent with provisions of the FOIA? RESPONSE: Based on my review of the records, the custodian's decision to release the job application as redacted is consistent with the Act.

Original opinion text

Opinion No. 2016-043
April 21, 2016
Aaron W. Johnson
TANF Program Supervisor
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Department of Workforce Services
818 Highway 62-65
P. O. Box 280
Harrison, AR 72601
Dear Mr. Johnson:
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.
2015). This subsection 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 someone has made a FOIA request for your
job application for employment with the Arkansas Department of Workforce
Services (ADWS). The custodian of records for ADWS has decided that the
requested information is not exempt from disclosure and that "to be in compliance
with the Arkansas FOIA, a redacted copy of your job application and resume will
be provided to the person requesting this information." You state that you
understand your employment application is not exempt from disclosure, but you
object to the release of the names and addresses of your previous employers which
are listed on your application. You also object to the release of your resume
because, you state, it "was not specified in [the] FOIA request" and it "was an
optional attachment that was not required for application or employment with
ADWS." You state: "I feel that my resume and the names and addresses of my
previous employers are irrelevant to the issues of [the FOIA requester's] concern
and will constitute an unnecessary release of my private information."
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. In my opinion, the custodian has properly decided that the names and
addresses of your previous employers are subject to disclosure. With regard to
your resume, having reviewed the record, it is my opinion that the custodian's
decision to release it as redacted is consistent with the FOIA. Please note,
however, that I cannot address your concern that the FOIA requester did not seek
your resume. My duty to issue an opinion under Ark. Code Ann. § 25-19-
105(c)(3)(B) arises after the records have been located and is limited to reviewing
the custodian's decision as to "whether the records are exempt from disclosure."
Identifying records responsive to the request is a task uniquely within the
custodian's purview, both as a statutory matter and as a practical matter because it
requires factual determinations that are outside the scope of an opinion from this
office.
I must also note that a person's motive or reason for requesting records pursuant to
the FOIA is ordinarily irrelevant to whether a record should be released. If the
record is a "public record" under the FOIA and is subject to no exception, it must
be released without regard to the requester's motive for seeking access. A resume
that is maintained by a public employer generally constitutes a non-exempt
"public record" under the FOIA.
DISCUSSION
I. General standards governing disclosure.
Responsive documents 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 documents must constitute public
records. Third, no exceptions allow the documents to be withheld.
The first two elements appear met in this case. As for the first element, the
documents are held by the Arkansas Department of Workforce Services, which is
a public entity. As for the second element, the FOIA defines "public record" as:
writings, recorded sounds, films, tapes, electronic or computer-based
information, or data compilations in any medium, required by law to
be kept or otherwise kept, and which constitute a record of the
performance or lack of performance of official functions which 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. All records
maintained in public offices or by public employees within the scope
of their employment shall be presumed to be public records.
I believe it is clear that job applications and resumes accompanying those
applications are public records under this definition.
II. Exceptions to disclosure
As public records, job applications and resumes must be released unless some
exception prohibits their release. In my opinion, the relevant exception based on
your objections is the one for "personnel records." While the FOIA does not
define the term "personnel records," this office has consistently opined that
"personnel records" are all records other than employee evaluation and job
performance records that pertain to individual employees. And this office and the
two leading commentators on the FOIA have repeatedly noted that job
applications and accompanying resumes generally meet this definition.
Accordingly, those records must be released unless doing so constitutes a clearly
unwarranted invasion of personal privacy. While the FOIA does not define the
phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme
Court, in Young v. Rice, has provided some guidance. To determine whether the
release of a personnel record would constitute a "clearly unwarranted invasion of
personal privacy," the Court applies a balancing test that weighs the public's
interest in accessing the records against the individual's interest in keeping them
private. The balancing takes place with a thumb on the scale favoring disclosure.
The balancing test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in the requested document 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. Because the exceptions must be narrowly construed, the
person resisting disclosure bears the burden of showing that, under the
circumstances, his privacy interests outweigh the public's interests. The fact that
the subject of any such records may consider release of the records an unwarranted
invasion of personal privacy is irrelevant to the analysis because the test is
objective.
III. Application
Whether the release of any particular personnel record would constitute a clearly
unwarranted invasion of personal privacy is a question of fact. With regard,
however, to job applications and resumes, this office has repeatedly indicated that
the release of such records rarely rises to such a level. Specifically with regard
to names and addresses of previous employers listed on a job application, I believe
it is clear that the release of this type of information does not rise to the level of a
"clearly unwarranted invasion of personal privacy." As this office has previously
noted, the public clearly has a significant interest in information reflecting
employees' professional experience and qualifications.
In sum, it is my opinion that the custodian has properly decided that the names and
addresses of your previous employers listed on your employment application are
subject to disclosure under the FOIA. With regard to your resume, it is my
opinion that the custodian's decision to release this kind of record is consistent
with the FOIA because a public employee's resume ordinarily is a non-exempt
"public record." Furthermore, having reviewed your resume, it is my opinion that
the custodian's decision to release this record as redacted is consistent with the
FOIA.
Sincerely,
LESLIE RUTLEDGE
Attorney General