Can an Arkansas state employee request that their personal information be excluded from the redacted job application that the custodian plans to release under FOIA?
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This page answers the general question as of 2016. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Shemekia Hicks, the Office Manager at the Arkansas Department of Workforce Services in El Dorado, invoked her statutory right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether the custodian's decision to release a redacted copy of her job application was consistent with the FOIA. The ADWS notice referenced the application plus a resume; the AG's review confirmed no resume was actually in the file. Hicks asked that her "personal information not be disclosed."
AG Leslie Rutledge concluded the custodian had it right. The reasoning followed the same framework the AG used in the parallel opinions issued the same week (2016-043 and 2016-044): the application is a public record under § 25-19-103(5)(A); the personnel-records exception of § 25-19-105(b)(12) applies; the Young v. Rice balancing test (with the thumb on the scale favoring disclosure) does not block release. The release of a job application "rarely rises" to the level of a clearly unwarranted invasion of personal privacy, especially after standard redactions strip out the obviously sensitive items.
Hicks's general request to keep her personal information out of the release does not give the custodian discretion to withhold the whole record. The Young v. Rice test is objective. The fact that the subject of a record considers disclosure unwarranted does not change the analysis (Stilley v. McBride puts the burden of proving an exemption on the custodian, not on the employee's preference). The mechanism for protecting personal information is redaction, not blanket withholding.
A footnote in the AG's opinion noted that one record dated August 18, 2015 might or might not be an employee-evaluation record subject to the more restrictive § 25-19-105(c)(1) test. That classification is a question of fact for the custodian applying Thomas v. Hall's three-part standard. Because Hicks was not suspended or terminated, an actual evaluation record would not be releasable in any event.
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 exceptions, two different tests
Arkansas FOIA treats employee records under two distinct exceptions:
- § 25-19-105(b)(12), personnel records. Open by default; closed only when Young v. Rice balancing shows a privacy interest greater than de minimis and that interest outweighs the public's interest.
- § 25-19-105(c)(1), employee evaluation or job performance records. Closed by default; open only on a four-part test (suspension or termination, finality, the record formed a basis, compelling public interest).
A job application pre-dates the employment relationship, so it cannot have been created by or at the behest of the employer to evaluate the employee. It is a personnel record, and the Young balancing applies.
The Young v. Rice balancing in practice
Under Young, the custodian first asks whether the information in the record 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 toward disclosure. If yes, the privacy interest is weighed against the public's interest in disclosure.
Job application content is mostly professional information (education, employment history, qualifications, references) rather than personal or intimate. Standard redactions strip out the sensitive personal items: date of birth, Social Security number, medical information, home address (under § 25-19-105(b)(13) for most employees), driver's license number, banking information, personal email, marital status, and dependent information. With those gone, what remains rarely meets the "clearly unwarranted" standard. The AG has consistently held that release of a job application is consistent with the FOIA.
Why the subject's preference does not control
Stilley v. McBride set the burden of proving an exemption on the custodian. By extension, the subject of a record who wishes to keep it private bears the burden of showing why their privacy interest overcomes the public's interest in disclosure. A general statement that the subject would prefer not to have personal information disclosed does not carry that burden. The Young test is objective, not subjective. If the AG ruled otherwise, every public employee could effectively veto disclosure of their own personnel file by registering an objection.
The right mechanism for protecting personal information is redaction. The custodian identifies the categories of information that must come out (the standard list in AG opinions) and removes them before release. What remains is the public information about how the public employer staffed itself.
Common questions
Q: I'm an Arkansas state employee. Can I ask the custodian to withhold my whole job application from FOIA release?
A: Asking does not change the analysis. Job applications held by a public employer are personnel records, and Young v. Rice balancing rarely blocks their release. The redaction process protects standard categories of personal information; the rest of the application is releasable.
Q: What personal information will get redacted before release?
A: Standard redactions across AG opinions include date of birth, Social Security number, medical information, driver's license number, banking information, home address (under § 25-19-105(b)(13) for most employees), personal email address, unlisted phone number, marital status, and information about dependents.
Q: What if some of my personal information is mixed in with my professional history (for instance, references that include personal phone numbers)?
A: The custodian should redact the personal portions and release the professional portions. The fact that personal information is co-located with public information does not justify withholding everything.
Q: Does the requester have to say why they want my application?
A: No. Requester motive is irrelevant to FOIA analysis. The custodian decides whether the record is a public record and whether any exception applies; the requester's reasons are not part of the test.
Q: What if one of the records in my file is actually an employee-evaluation record?
A: Then a different rule applies. Under § 25-19-105(c)(1) and Thomas v. Hall, an evaluation record stays closed unless you were suspended or terminated, there has been a final administrative resolution, the record formed a basis for the discipline, and there is a compelling public interest. The custodian classifies the record as a question of fact.
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)
- A.C.A. § 25-19-105(b)(12) (personnel records exception)
- A.C.A. § 25-19-105(c)(1) (employee evaluation records exception)
Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
Source
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
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2016-047
April 21, 2016
Shemekia Hicks, Office Manager
Arkansas Department of Workforce Services
523 East 6th Street
El Dorado, AR 71730
Dear Ms. Hicks:
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 have asked that your
personal information not be disclosed.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the records at issue, it is my opinion that the custodian's
decision to release your job application as redacted is consistent with the FOIA.
My review indicates that the records do not include a resume.
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 a job application is a public record under this definition.
Accordingly, your application must be disclosed unless some specific exception
provides otherwise.
II. Exceptions to disclosure
It appears that the most relevant exception in this case 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, this office has repeatedly indicated that the release of
such records rarely rises to such a level. Having reviewed your job application,
it is my opinion that the custodian's decision to release it as redacted is consistent
with the FOIA.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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