Can a public employee's job application be released under Arkansas FOIA over the applicant's objection?

Plain-English summary

A public employee at the Arkansas Department of Human Services objected when someone filed a FOIA request for her successful internal job application. She wanted to be judged in her new role by her future performance, not by her past job history or schools attended. The records custodian decided to release the application with redactions. The employee asked the AG to review that call.

The AG approved the release. Under the Arkansas FOIA, a public employee's job application is a "personnel record," which is open to inspection unless disclosure would constitute "a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's Young v. Rice balancing test, used to evaluate that privacy claim, has a thumb on the scale favoring disclosure. Educational background and work history reflect job qualifications, which are a public-interest matter, and the AG has consistently said those items do not trigger a privacy interest that overcomes the public interest.

The applicant's personal preference about how colleagues should form an impression of her is irrelevant. The privacy test is objective.

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.

Common questions

Q: What is the difference between a personnel record and an evaluation record under Arkansas FOIA?
A: Personnel records are the items in an employee's file that are not created to evaluate the employee. A job application, employment-confirmation letter, salary record, or transfer record is a personnel record. An evaluation record is created by or at the employer's behest to evaluate performance. Different exemptions, different tests.

Q: What is the Young v. Rice balancing test?
A: A two-step test for whether release of a personnel record would invade personal privacy. Step 1: Is the information of a personal or intimate nature, raising more than a de minimis privacy interest? If not, disclosure is required. Step 2: If yes, does the public's interest in disclosure outweigh the privacy interest? Because FOIA exemptions are narrowly construed, the person resisting disclosure bears the burden.

Q: Why doesn't the employee's personal preference matter?
A: Because the test is objective. The custodian (or, on review, the AG and the courts) decides based on the nature of the information and the public interest, not the subject's own privacy feelings.

Q: What kinds of items typically get redacted from a job application even when the rest is released?
A: Personal contact information of the employee (home address, personal phone), social security numbers, dates of birth, and similar private identifiers. The opinion notes the application here was released "as redacted."

Q: Is educational background ever exempt?
A: School transcripts can sometimes still be exempt under FERPA or as a personnel-record privacy matter, but "general educational background, including schools attended and degrees received" on an application or resume is consistently open.

Background and statutory framework

Arkansas' FOIA at Ark. Code Ann. § 25-19-101 et seq. presumes disclosure of public records. A document must be released if (1) the request is to a public entity, (2) the document is a public record, and (3) no exemption shields it. A "public record" includes writings and electronic information that constitute a record of the performance or lack of performance of official functions by a public employee or agency (§ 25-19-103(5)(A)). A job application held by a state agency clearly qualifies (citing Op. Att'y Gen. 87-070).

The relevant exemption is § 25-19-105(b)(12), which protects personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." That phrase is not defined in the statute, so the Arkansas Supreme Court built the framework in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). The test runs in two steps as described above.

Where, as here, the redacted application contains educational background and work history, multiple AG opinions and commentators (Watkins & Peltz) treat that as standard personnel-record material that reflects qualifications for public employment. Public interest in qualifications outweighs any minimal privacy interest in the items.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(5)(A) (public record definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian opinion request)

Cases:

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

Source

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

Original opinion text

Opinion No. 2016-124
December 6, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Jessica Marquez Melgar, Program Eligibility Specialist
Division of Child Care and Early Childhood Education
DHS - Donaghey Plaza South
700 Main Street
P. O. Box 1437, Slot S145
Little Rock, AR 72203

Dear Ms. Melgar:

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 made a FOIA request for your application for employment with the Arkansas Department of Human Services (ADHS). The custodian of records for ADHS has determined that a redacted copy of your employment application will be provided to the person requesting this information. You object to the release of the application on the basis that you have not yet started in the new position at ADHS, and you want those you will be working with to get to know you "based on [your] achievements in the new position and as opposed to what jobs [you] have had in the past or what schools [you] have attended."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed both the redacted and the un-redacted employment application at issue, it is my opinion that the custodian's decision to release the application, as redacted, is consistent with the FOIA.

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, there must be no exceptions that require the document to be withheld.

The first two elements appear to be met in this case. As for the first element, the documents are held by ADHS, 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.

An employment application kept by ADHS clearly qualifies as a "public record" under this definition. Accordingly, the application in question must be released unless some exemption applies to prohibit its release.

II. Exceptions to disclosure

In my opinion, the exemption that is potentially relevant here 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 observed that job applications of public employees, and accompanying resumes, generally meet this definition.

Accordingly, such a job application generally 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 record against the individual's interest in keeping it 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 FOIA 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 mere 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

This office has previously concluded in numerous Attorney General Opinions that an employee's educational background and work history, as reflected in an application for employment, reflect job qualifications and that a public interest therefore attaches to this information. This office has further regularly opined that information related to the educational background and work history of public employees does not give rise to a "clearly unwarranted invasion of personal privacy."

With regard to the education background of applicants:

This office has previously opined, in opinions too numerous to cite, that records reflecting the educational background of public employees are generally open to inspection under the FOIA. See e.g., Ops. Att'y Gen. 98-202 and 94-319.

Although certain individual academic records, such as school transcripts, may still be eligible for exemption when contained in personnel files, employee records reflecting a public employee's general educational background, including schools attended and degrees received, appearing for example on an employment application or resume, are open to public inspection under the FOIA.

A public employee's work history is similarly generally subject to disclosure because the release of such information is not considered to constitute a "clearly unwarranted invasion of personal privacy" under the exception for personnel records found at Ark. Code Ann. § 25-19-105(b)(12).

Having reviewed the employment application in question, it is my opinion, consistent with the previous opinions of this office, that the custodian has properly determined that the application is subject to release, as redacted.

Sincerely,

LESLIE RUTLEDGE
Attorney General