Can a Little Rock police officer's job application be released to a FOIA requester after personal contact details are redacted?

Plain-English summary

A FOIA requester asked the City of Little Rock for the employment application of LRPD Sergeant Derrick Threadgill, plus any complaints and internal investigation files involving his employment. The Human Resources director notified Sgt. Threadgill that his application would be released with certain redactions. He asked the Arkansas AG to confirm whether that decision was consistent with FOIA.

AG Leslie Rutledge agreed with the custodian. The job application is a personnel record under settled Arkansas FOIA precedent, and Arkansas law has long treated job applications of public employees as records subject to release. The redactions of personally identifying or privacy-protected items (the standard list: home address, personal phone, date of birth, SSN, medical information, and similar) are consistent with FOIA.

The opinion clarifies that the AG was only reviewing the application decision. The AG had no notice of any separate custodian decision on the complaints or internal investigation files, and LRPD had informed HR that no responsive complaint or investigation records existed. Whether responsive records exist is a factual determination outside the scope of the AG's FOIA-review role.

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.

The FOIA framework for personnel records, redaction requirements, and law-enforcement carveouts has been amended since 2016. Confirm the current statute and current AG guidance before relying on the specific items the opinion lists as automatically redactable.

Background and statutory framework

Under Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., a document held by a public entity is presumed open. A custodian who wants to withhold or redact must point to a specific exemption.

The relevant exemption here is the personnel-records exception in § 25-19-105(b)(12): personnel records are open unless disclosure would constitute "a clearly unwarranted invasion of personal privacy." Under Young v. Rice, 308 Ark. 593 (1992), the custodian applies the two-step balancing test with the thumb on the scale for disclosure. The party resisting release bears the burden (Stilley v. McBride, 332 Ark. 306 (1998)).

Why a job application is a personnel record

The AG cited her own prior opinions and the leading FOIA commentators (Watkins & Peltz) for the consistent rule: employment applications "are 'a record of the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate.'" Job applications of public employees, including police officers, have long been treated as personnel records subject to FOIA release.

What the custodian must still redact

Even when a job application is releasable as a whole, certain pieces inside it must be redacted because they carry their own statutory or precedent-based privacy protections. The AG listed:

• Home address, personal phone, personal email (§ 25-19-105(b)(13))
• Date of birth (Op. 2007-064)
• Social Security number (Ops. 2006-035, 2003-153)
• Marital status and dependents (Op. 2001-080)
• Medical information (Op. 2003-153)
• Identification of officers currently working undercover (§ 25-19-105(b)(10))
• Driver's license number (Op. 2007-025)
• Insurance coverage (Op. 2004-167)
• Tax/withholding (Ops. 2005-194, 2003-385)
• Payroll deductions and banking information (Ops. 98-126, 2005-194)

The scope-of-review point

The AG was careful to confine her opinion to the application decision. The original FOIA request also covered complaints and internal investigation files, but the custodian had not made a separate decision on those (and LRPD's position was that no responsive records existed). FOIA-opinion review under § 25-19-105(c)(3)(B)(i) extends only to actual custodian decisions concerning personnel or evaluation records. It is not a vehicle for testing whether the agency searched its files correctly.

Common questions

Q: Can the public obtain a police officer's job application in Arkansas?
A: Under this opinion, generally yes, with personal-privacy redactions. Job applications of public employees are personnel records subject to release in most cases.

Q: Can the subject employee block release of their own application?
A: No. The objective Young v. Rice test governs. An employee's personal view that disclosure would be embarrassing or invasive does not carry weight unless the privacy interest is independently more than de minimis and outweighs the public interest.

Q: What if the requester wants the internal affairs file too?
A: That is a separate analysis. Internal investigation records are typically employee-evaluation records, subject to the four-prong test (suspension/termination, finality, basis, compelling public interest), not the personnel-records balancing test. The custodian must decide separately for each set of records.

Q: Does an AG FOIA opinion bind anyone?
A: It is persuasive but not binding. A custodian who relies on it has a defensible position; a requester who disagrees can still sue in circuit court. The AG opinion is not a court order.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exemption
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG-opinion review process
• Ark. Code Ann. § 25-19-103(5)(A), definition of public record
• Ark. Code Ann. § 25-19-105(b)(13), personal contact information
• Ark. Code Ann. § 25-19-105(b)(10), undercover officer information

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test for personnel records
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), burden on party resisting disclosure

Source

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

Original opinion text

Opinion No. 2016-104
October 12, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Sergeant Derrick Threadgill
Little Rock Police Department
700 West Markham Street
Little Rock, AR 72201-1329
Dear Sgt. Threadgill:

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)
(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 requested your employment
application and any information on complaints and internal investigation files
involving your employment with the Little Rock Police Department ("LRPD").
The director of Human Resources with the City of Little Rock has notified you of
her decision that your employment application, with certain redactions, is not
exempt from disclosure. You have requested my review of the custodian's
decision to ensure complete compliance with the FOIA.

Before reviewing that decision, I must reiterate that the notice you received from
the Human Resources director only involved the release of your employment
application. It did not include any decision regarding any complaints and internal
investigation files. I have no record of any notice to you regarding any decision
that may have been made involving any records relating to complaints and internal
investigation files. In fact, I have been informed by the Human Resources director that LRPD states that, with respect to records regarding complaints and internal investigations, LRPD has no responsive documents. This opinion does not address LRPD's determination that it has no responsive documents. Such a determination is outside the scope of an Attorney General's opinion under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015).

Because my duty under the FOIA is to opine on whether a records custodian's decision is consistent with the FOIA, this opinion must of necessity be limited to a review of the only custodian decision this office has received, namely the Human Resources director's decision to release your employment application as redacted.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the record, it is my opinion that (1) the record is properly
classified as a personnel record; (2) there is confidential information on the record
that is shielded from disclosure under the FOIA; and (3) the custodian of the
record has redacted the confidential information in a manner that is consistent with
the FOIA. I will set out all the definitions and standards and then apply them to
the record at issue.

DISCUSSION

I. General standards governing disclosure.

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 exemptions allow the document to be withheld.

The first two elements appear met in this case. As for the first element, the record
at issue is held by the City of Little Rock, which is a public entity. As for the
second element, the FOIA defines a "public record" as:

[W]ritings, 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 an employment application is a public record under this
definition. Therefore, in my opinion, this document is a public record and must be
disclosed unless some specific exemption provides otherwise.

II. Exemptions from disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files. For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records" or "employee
evaluation or job performance records." The test for whether these two types of
documents may be released differs significantly.

When custodians assess whether either of these exemptions applies to a particular
record, they must make two determinations. First, they must determine whether
the record meets the definition of either exemption. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that record be disclosed.

In my opinion, the personnel-records provision is the only relevant exemption in
this instance. I will therefore limit my discussion to 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.
Whether a particular record meets this definition is, of course, a question of fact
that can only be definitively determined by reviewing the record itself. This office
and the two leading commentators on the FOIA have repeatedly noted that job
applications 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 exemptions 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.

Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 25-19-105(b)(13));
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

III. Application.

Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact. With
regard to job applications, however, this office has repeatedly indicated that the
release of such records rarely rises to such a level. Having reviewed your
employment 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

cc: Stacey Witherell
City of Little Rock