Can a school district release a public employee's job application under Arkansas FOIA after redacting personal contact info?

Plain-English summary

Someone made a FOIA request to Little Rock School District for a copy of an employee's online job application. The district's records custodian decided to release the application after redacting Social Security number, home addresses, personal phone numbers, and personal email addresses (and, the AG's review confirmed, transcript grades). The employee, Amy Pierce, asked the AG to review whether that release decision was consistent with FOIA, using the AG-review process in Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG's answer was yes. Releasing the application as redacted was consistent with FOIA.

The reasoning followed the standard three-step FOIA analysis. First, the request had to be directed to a public entity (LRSD qualifies). Second, the document had to be a public record (a job application kept by a public employer is a "public record" under Ark. Code Ann. § 25-19-103(7)(A)). Third, no exemption could allow the document to be withheld.

The relevant exemption was the personnel-records exemption at § 25-19-105(b)(12), which keeps personnel records out of public hands only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Job applications generally meet the definition of "personnel records." The question becomes whether release would clearly invade personal privacy.

The Arkansas Supreme Court's Young v. Rice decision sets a two-part balancing test for personnel-record disclosure. Step one: does the document contain information of a "personal or intimate nature" creating a more-than-de-minimis privacy interest? Step two: if yes, does the public's interest in disclosure outweigh the privacy interest? The presumption tilts toward disclosure. The person resisting disclosure carries the burden.

A document that overall passes the balancing test can still have specific items that must be redacted. The AG's opinion lists the standard items: personal contact information of public employees (per § 25-19-105(b)(13)), marital status and dependents, dates of birth, Social Security numbers, medical information, undercover law enforcement identifying information, driver's license numbers, insurance coverage, tax and withholding info, payroll deductions, and banking information.

The custodian's redactions tracked that list almost exactly. Having reviewed both the redacted and unredacted versions, the AG concluded the release was consistent with FOIA.

Currency note

This opinion was issued in 2017. 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

Arkansas FOIA's personnel-records framework is built on a few moving parts.

The general rule, in § 25-19-105(a), opens public records to inspection and copying by any Arkansas citizen during regular business hours.

The personnel-records exemption in § 25-19-105(b)(12) carves out personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Note the limit: the exemption only kicks in to the extent disclosure would invade privacy. Records that don't trigger that concern remain open. And the privacy invasion has to be "clearly unwarranted," not merely possible.

The job-performance-records exemption in § 25-19-105(c)(1) is a separate track. Job-performance records are open only after a final administrative decision on a suspension or termination where the records formed the basis for the decision, and only if there is a "compelling public interest" in disclosure. This is a much higher bar than the personnel-records standard, and it's the exemption that controls performance evaluations and disciplinary write-ups.

The personal-contact-info redaction rule in § 25-19-105(b)(13) is mandatory for any record release: home addresses, personal phone numbers, and personal email addresses of public employees come out before release.

Young v. Rice applies a two-step balancing test for the personnel-records exemption: (1) is the privacy interest more than de minimis, and (2) if yes, does the public interest outweigh it? Stilley v. McBride puts the burden on the person resisting disclosure. The AG's office has long taken the position that the analysis is objective, so the employee's subjective objection to release does not move the needle.

Job applications are usually personnel records. The AG and leading commentators have repeatedly said so. Transcript grades attached to applications are also evaluated as personnel records.

Common questions

Are public-employee job applications open under Arkansas FOIA?
Generally yes, as personnel records, with mandatory redaction of personal contact information and other sensitive items.

What has to be redacted before release?
The AG's list, drawn from prior opinions: Social Security numbers, home addresses, personal phone numbers, personal email addresses, marital status, dependents, dates of birth, medical info, driver's license numbers, insurance coverage, tax and withholding details, payroll deductions, banking information, and undercover law enforcement identifiers.

Does the employee's objection to release matter?
Not by itself. The privacy test is objective. An employee's view that release is unwarranted is "irrelevant to the analysis."

Why didn't transcript grades have to be released?
The AG noted that public-employee transcript grades are evaluated under the personnel-records exemption. Under the Young v. Rice balancing, the privacy interest in academic grades typically outweighs the public interest, so grades commonly come out before release.

What's the AG-review process the employee used?
Ark. Code Ann. § 25-19-105(c)(3)(B)(i) lets a custodian, requester, or subject of personnel or evaluation records get an AG opinion on whether the custodian's release decision is consistent with FOIA. It's a fast, free way to get a non-binding read before the records actually go out.

Source

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

Original opinion text

Opinion No. 2017-121
November 14, 2017
Mrs. Amy Pierce
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Rhonda Benton, SPHR, SHRM-SCP, CLRP
Director of Human Resources
Little Rock School District
810 West Markham Street
Little Rock, AR 72201
Dear Mrs. Pierce:

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 request to the Little Rock School District (LRSD) for a copy of your online job application. The records custodian has determined that your online application should be disclosed after redacting "all personal contact information including, but not limited to: [S]ocial [S]ecurity number, home addresses, personal telephone numbers and personal email addresses, as required by law." You have requested Attorney General review of the custodian's decision, pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

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, no exceptions allow the document to be withheld.

The first two elements appear met in this case. As for the first element, the documents are held by the LRSD, which is a public entity. As for the second element, the FOIA defines "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.

An employment application kept by the LRSD 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.

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 exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. 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 exemption that is primarily relevant in addressing the requested records at issue is the one for "personnel records."

The FOIA does not define the term "personnel records." But 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, a job application generally must be released unless doing so constitutes a clearly unwarranted invasion of personal privacy. A public employee's college grade transcripts kept in the employer's files are also evaluated under the personnel records exemption.

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.

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); and
• Payroll deductions (Op. Att'y Gen. 98-126);
• 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. But in the case of job applications, this office has repeatedly indicated that the release of public employee's personal contact information is exempt from disclosure pursuant to Ark. Code Ann. § 25-19-501(b)(13) (exempting "personal contact information ... contained in employer records.").

Having reviewed your employment application under these standards, it is my opinion that the custodian's decision to release it, as redacted, is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General