Can the public get a copy of an ADWS employee's redacted job application through Arkansas FOIA?

Plain-English summary

Tammala F. Williams, an Arkansas Department of Workforce Services (ADWS) employee, asked the AG (through ADWS legal counsel) to review the custodian's decision to release her redacted job application in response to a FOIA request. Unlike the companion request from Delois Hare (Opinion 2016-075), Williams's request came with a copy of the application for the AG to review.

AG Leslie Rutledge concluded that the custodian's decision was consistent with FOIA. The reasoning matched the standard personnel-records analysis:

1. Public record. A job application held by a public agency is a public record under § 25-19-103(5)(A). The agency's hiring process is a public function, citing Op. Att'y Gen. 87-070.

2. Personnel-records exception. A job application falls under § 25-19-105(b)(12), which exempts personnel records from disclosure to the extent disclosure would be a "clearly unwarranted invasion of personal privacy."

3. Young v. Rice balancing test. The two-step test from the Arkansas Supreme Court asks first whether there is a more-than-de-minimis privacy interest, and second whether that interest outweighs the public's interest in disclosure. The thumb is on disclosure; the person resisting bears the burden (Stilley v. McBride); and the employee's subjective view is irrelevant.

4. Job applications rarely clear the threshold. AG opinions had consistently said job applications rarely contain information whose disclosure would be a clearly unwarranted invasion of personal privacy. The AG cited Op. Att'y Gen. 2016-075, 2016-047, and 2016-044 as recent examples.

5. Applied to Williams's specific application. Having reviewed Williams's application, the AG concluded that release (with the planned redactions) was consistent with FOIA.

The AG separately flagged a potential employee-evaluation issue with a document dated August 18, 2015. The AG could not tell from the document's face whether it was an employee-evaluation record under § 25-19-105(c)(1), which would invoke the much stricter four-element release test from Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (created by/at the behest of the employer, to evaluate the employee, detailing employee performance). Suspension or termination is a threshold for releasing evaluation records, and Williams had been neither suspended nor terminated, so the record might not be releasable if it qualified as an evaluation record. The AG referred the custodian to Op. Att'y Gen. 2014-109 for a detailed discussion. Whether the document was an evaluation record or a personnel record was a fact question for the custodian.

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

Why this opinion got a "yes" while Opinion 2016-075 got a "general framework"

The procedural distinction between this opinion and the companion request in Op. 2016-075 (Hare) is small but important. Hare did not provide the AG with copies of the documents the custodian intended to release. The AG could therefore only give a general framework, with the bottom-line that the framework "generally" supported the custodian's decision.

Williams's request came with a copy of the application. The AG could review it specifically and could give a definitive answer: yes, releasing the redacted application is consistent with FOIA.

The two-track exemption framework

Arkansas FOIA carves out two exemption categories for employee-related records:

• Personnel records (§ 25-19-105(b)(12)): "open to public inspection and copying except to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Young v. Rice balancing test governs. Thumb on the scale of disclosure. Privacy interest must be more than de minimis and must outweigh the public interest.
• Employee evaluation or job performance records (§ 25-19-105(c)(1)): much more protected. Releasable only if (1) the employee was suspended or terminated, (2) there was a final administrative resolution, (3) the record formed a basis for that decision, and (4) the public has a compelling interest in disclosure. Thomas v. Hall set out the definition.

A job application is a personnel record. An evaluation record is something else: a document created by the employer to evaluate the employee, detailing performance on the job (interview notes, discipline letters, supervisor reports).

Why job applications generally release

The AG had repeatedly opined that the typical content of a job application (educational background, work history, references, application essay) does not trigger a more-than-de-minimis privacy interest. The information bears on whether the public employee is qualified for the public job, which is exactly the kind of public-interest material that justifies disclosure. Op. Att'y Gen. 2009-032 had specifically quoted Op. Att'y Gen. 2006-165 for the proposition that educational background and work history "reflect job qualifications and a public interest therefore attaches to this information."

Even with this general rule, specific items get redacted: Social Security numbers, medical information, school transcripts, personal contact information, date of birth, marital status, and information about dependents.

The August 18, 2015 document

The AG saw something dated August 18, 2015 in Williams's submitted materials. The AG could not tell whether it was part of the application package or an employee-evaluation record. Williams was an employee, not just an applicant, so post-hire records might be intermingled with the application.

If the August 18 document was an evaluation record under Thomas v. Hall's three-part definition (created by or at the employer's behest, to evaluate Williams, detailing Williams's job performance), § 25-19-105(c)(1) would apply. Because Williams had been neither suspended nor terminated, the threshold of the four-part test would not be satisfied, and the record could not be released. Whether the August 18 document met the Thomas definition was a question of fact the custodian had to resolve, with reference to the document's creation context.

The AG referred the custodian to Op. Att'y Gen. 2014-109 for a more detailed discussion of the personnel-vs.-evaluation line.

Common questions

Q: Are job applications of state agency employees public under FOIA?
A: Generally yes. The AG had repeatedly opined this way, and confirmed it for Williams's specific application after review.

Q: What gets redacted?
A: Personal contact information, Social Security numbers, school transcripts, medical information, date of birth, marital status, and information about dependents.

Q: Can I block my own job application from being released?
A: No. The Young v. Rice test is objective. Your subjective preference is not the standard.

Q: What about documents in my personnel file that were created after I was hired?
A: That depends on whether they are personnel records or employee evaluation records. Evaluation records have a much stricter four-element release test and typically require suspension or termination. The custodian classifies each document.

Q: What if I think a particular document in my file is genuinely intimate?
A: You can argue, but you bear the burden under Stilley v. McBride. The custodian or a reviewing court applies the Young v. Rice balancing.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015), definition of "public record"
• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exception
• Ark. Code Ann. § 25-19-105(c)(1), employee-evaluation exception
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), AG review of custodian decisions

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Ark. Sup. Ct.)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Ark. Sup. Ct.)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Ark. Sup. Ct.)

Treatise:

• John J. Watkins and Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed., 2009)

Prior AG opinions:

• Op. Att'y Gen. 2016-075, 2016-047, 2016-044, 2014-109, 2010-044, 2009-032, 2007-008, 2006-165, 2006-176, 2005-004, 2004-260, 2003-336, 2001-368, 2001-112, 2001-022, 98-001, 94-198, 87-070

Source

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

Original opinion text

Opinion No. 2016-081
July 22, 2016

Tammala F. Williams
c/o Gregory Ferguson, Legal Counsel
Department of Workforce Services
P. O. Box 8040
Little Rock, AR 72203

Dear Ms. Williams:

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 will be provided to the person requesting this information." A copy of your application has been made available for my review, and you have asked whether the custodian's decision to release the application with certain personal information redacted is consistent with the FOIA.

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.

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 minimis privacy interest. If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis 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.

The other specific exception covering employee-related records is the one for "employee evaluation or job performance records." Ark. Code Ann. § 25-19-105(c)(1). I cannot definitively determine whether this exception applies to a record dated August 18, 2015. This may or may not be your employee-evaluation record, depending upon the circumstances surrounding its creation. Specifically, I cannot determine whether this record was created for the purpose of evaluating you. The employee-evaluation exception only applies to records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. Please see the attached Op. Att'y Gen. 2014-109 for a more detailed discussion of this exception. If this exception applies, suspension or termination is a threshold requirement for its release. Because you were neither suspended nor terminated, there may be some question whether the record dated August 18, 2015, is subject to release. The answer likely turns on the record's proper classification, which is not apparent from the face of the record. The record's classification is a question of fact that must be decided by the record's custodian.

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