Can an Arkansas school district avoid Arkansas FOIA by hiring a private firm to handle confidential superintendent applications?

Plain-English summary

State Representative Monte Hodges asked the AG about a scenario where an Arkansas school district was looking for a new superintendent and considering hiring a private search firm. The firm had told the school board it would receive all applications, that "the applicants and their applications would be confidential," and that only board members would have access through a confidential web portal. Hodges asked whether that arrangement could shield the applications from the Arkansas FOIA.

AG Leslie Rutledge said no. The Arkansas Supreme Court has long applied a "functional equivalent" doctrine: when a public agency conducts its affairs through a private entity, that private entity is treated as the agency itself for FOIA purposes. The leading case is City of Fayetteville v. Edmark, where the Court held that memoranda prepared by a city's outside counsel were public records, because the outside attorneys were acting as the functional equivalent of the city attorney. Swaney v. Tilford applied the same reasoning to outside auditors hired by a state agency.

Applied to the school district scenario, the search firm receiving applications is acting as the functional equivalent of the school district. The applications are public records under Ark. Code Ann. § 25-19-103(7)(A), and they cannot be hidden from FOIA by housing them with a private contractor. The school district must produce the applications on request, with redactions of any personal information that the FOIA exemptions cover (such as Social Security numbers, home addresses, and similar items that get redacted from any personnel record).

This is one of the most cited Arkansas AG opinions on the functional-equivalent doctrine and is regularly invoked when school districts, cities, or state agencies try to use private contractors as a buffer against public-records requests.

Currency note

This opinion was issued in 2018. 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

What is the "functional equivalent" doctrine?

It is a judge-made rule that prevents public agencies from avoiding FOIA by routing public business through private contractors. If a private contractor is doing what the agency itself would do, courts treat the contractor as the agency for FOIA purposes. The doctrine traces to City of Fayetteville v. Edmark (1990) and has been extended in several Arkansas cases.

Can a search firm refuse to produce the applications?

Not when it is operating as the functional equivalent of a public agency. The school district has the obligation under FOIA, and the search firm is just an extension of the district. If the firm refuses, the district can be ordered to produce. Practically, search firms hired by public bodies should be told from the start that the records will be subject to FOIA.

What about applicant privacy?

The opinion is clear that personal information has to be redacted in line with the standard FOIA redactions for personnel records: Social Security numbers, home addresses, personal contact information, dates of birth, and similar items. But name, qualifications, work history, and the fact of having applied for the public job are public.

Does this discourage qualified candidates from applying?

It is a real concern. Some Arkansas school districts have struggled to recruit superintendents in part because applicants worry about premature disclosure to their current employer. But the answer under the FOIA is to design the search process around the public's right to know, not to design it around hiding the applications. The legislature could create a statutory exemption for executive search records, but it has not.

Does this rule apply to other kinds of search firms?

Yes. The AG's reasoning is not unique to superintendent searches. Whenever a public agency hires a private firm to perform what the agency would otherwise do (collect applications, conduct audits, prepare legal memoranda), the records the firm holds in connection with that work are typically public records. City manager searches, university president searches, hospital board searches, and similar processes all run into the functional-equivalent doctrine.

Background and statutory framework

The Arkansas FOIA defines "public records" broadly:

• Ark. Code Ann. § 25-19-103(7)(A): writings or other media required by law to be kept or otherwise kept that constitute a record of the performance of official functions carried out by a public official, employee, governmental agency, or any other agency wholly or partly supported by public funds.

The functional-equivalent test from City of Fayetteville v. Edmark: when the state or a political subdivision conducts its affairs through a private entity, that entity is "for all practical purposes the government itself," and its records are public.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990)
• Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995)

Source

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

Original opinion text

Opinion No. 2018-012
April 13,2018
The Honorable Monte Hodges
State Representative
P. 0. Box 773
Blytheville, AR 72316-0773
Dear Representative Hodges:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDG E
You have asked for my opinion concerning employment applications and the
Arkansas Freedom of Information Act ("FOIA"). As background for your
question, you state that a school superintendent resigned and the school board
decided to interview firms that specialize in recruiting school leaders. You report
that one firm under consideration told the school board that it would receive all
applications and that "the applicants and their applications would be confidential
and only members of the [School] Board would have access to the applicants'
information." You further report that the firm said it "would establish a
confidential web page with all the applicants listed and this web page could be
accessed by the Board members only."
You ask in this regard:
Are the applicants (their applications) seeking employment in the
public school subject to the Arkansas Freedom of Information Act?
RESPONSE
In my opinion, the answer to your question is "yes" under the facts you have
outlined.
323 CENTER STREET. SU ITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV The Honorable Monte Hodges
State Representative
Opinion No. 2018-012
Page 2
DISCUSSION
It appears that the school district anticipates conducting its search for a new
superintendent through a private firm retained for that purpose. When the firm
accepts applications for the superintendent position, it is acting as the functional
equivalent of the district. This means that the list of applicants and their
applications will be "public records" under the FOIA.1 The Arkansas Supreme
Court has summarized the functional-equivalence test as follows:
In City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275
(1990), we held that memoranda prepared in anticipation of
litigation by a city's outside counsel were public records under the
FOIA. In so holding, we pointed out that the attorneys who wrote the
memoranda were acting as the functional equivalent of a city
attorney and were paid by public funds. Id. Therefore, the city
could not avoid FOIA requirements by substituting a private attorney
for the city attorney. Id. Likewise, in Swaney v. Tilford, 320 Ark.
652, 898 S.W.2d 462 (1995), where a state agency hired an outside
auditing company to perform required audits, the working papers of
the outside auditors were considered public records and the agency
was required to provide access to them under the FOIA.2
In Edmark, the Court quoted the following from a law review article in support of
its reasoning:
When the state or a political subdivision thereof seeks to conduct its
affairs through private entities, it seems clear that those entities are
for all practical purposes the government itself. It should not matter
whether the activity is "proprietary" or "governmental" in nature, for
1 The FOIA defines public records in relevant part as follows:
'Public records' means 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 that constitute a record of the performance
or lack of performance of official functions that 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 ....
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2 Fox v. Ferroni, 358 Ark. 251, 256-57, 188 S.W.3d 881, 885 (2004). The Honorable Monte Hodges
State Representative
Opinion No. 2018-012
Page 3
in either case the government is involved in the "public business".
Thus when a county official hires a certified public accountant to
conduct an audit of a county department instead of using public
employees for that purpose, the CPA's records relevant to that task
should be obtainable under the FOIA.3
Here, similar to Edmark, the school district will not avoid the FOIA requirements
by conducting its search for a new superintendent through a private firm. In my
opinion, the list of applicants and the applications will be "public records" under
the FOIA. This means that the list and applications will be subject to disclosure
unless some exemption prevents their release. In this regard, this office has
consistently opined that job applications must generally be disclosed4 after
deleting any exempt information, such as social security numbers5 and public
employees' personal contact information.6
Sincerely,
d:·=-=:>~
LESLIE RUTL~
Attorney General
3 304 Ark. at 187, 801 S.W.2d at 279 (quoting John J. Watkins, Access to Public Records under
the Arkansas FOIA, 37 Ark. L .Rev. 741, 764 (1984)).
4 See, e.g., Ops. Att'y Gen. 2009-063 (and opinions cited therein) and 2006-193 (noting that "it
would be unusual for a job application to contain information sufficiently private to warrant
withholding the record from public inspection.")
5 See Ops. Att'y Gen. 2001-091, 99-451.
6 Ark. Code Ann.§ 25-19-105(b)(l3) (Supp. 2017).