Can a county release a successful job applicant's records to a TV station under Arkansas FOIA, and what redactions are appropriate?

Plain-English summary

A KARK-TV reporter filed a FOIA request with Perry County for records relating to the county's hiring for the Office of Emergency Management position. The request covered "all applications and resumes submitted to Perry County" for the position, including a specific employee's application and resume, plus a copy of the offer letter, current salary, benefits, and other personnel-file material for that employee. Perry County Judge Toby L. Davis, as the records custodian, determined the records were responsive and prepared a redacted version for release. He asked the Attorney General whether his decision was consistent with FOIA.

Attorney General Leslie Rutledge concluded that the underlying decision to disclose the job application records was correct. Job applications submitted to public entities are public records and personnel records, and prior AG opinions had repeatedly confirmed they are usually subject to release once exempt personal information is redacted. But the AG noted she could not pass on every specific redaction because the unredacted documents were not provided.

Two specific issues caught the AG's attention from the redacted records:

1. Redactions of references' names and contact information. The AG flagged this as "at least questionable." The AG's office had consistently held that the names and contact information of references, when contained in a non-exempt public record, are not exempt unless the references themselves are current or former public employees (Op. Att'y Gen. 2016-129, with the public-employee carve-out from Op. Att'y Gen. 2016-118 n.20). The county may have over-redacted on this dimension.

2. Apparently blank pages with redactions. Some pages in the submission appeared to be blank but had redactions on them. The AG could not render any opinion on those pages.

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.

Background and statutory framework

Arkansas FOIA covers Perry County, a public entity. Records held by a public entity are presumptively public records. Job applications and resumes received by a public entity are personnel records under the AG's longstanding view (Ops. Att'y Gen. 2016-075, 2015-130, 87-070), as they document "the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate."

The personnel-records exemption at Ark. Code Ann. § 25-19-105(b)(12) requires withholding only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Under Young v. Rice, the test is a two-step balancing: (1) does the information rise above a de minimis privacy interest, and (2) if so, is the privacy interest outweighed by the public interest in disclosure? The scale tips toward disclosure, and the person resisting release carries the burden (Stilley v. McBride).

Job applications, especially those of successful candidates for public positions, generally fall on the disclosure side. The public has a strong interest in knowing who is being hired and on what credentials. The applicant's privacy interest is generally limited to specific data points (home address, date of birth, SSN, banking information, medical information), which are categorically redacted regardless of any balancing.

Why references' contact information is usually not exempt

The AG's office had consistently treated the names and contact information of references as not exempt under FOIA. The reasoning is structural: a reference's contact information is part of the public record of how the hiring decision was made and who vouched for the applicant. Unless the reference is themselves a current or former public employee (in which case § 25-19-105(b)(13)'s personal-contact-information exemption protects them), there is no FOIA basis for redacting references.

The opinion stops short of declaring the Perry County redactions improper. The AG had not seen the unredacted records and could not be certain whether some references happened to be public employees. But the opinion's flag is unmistakable: if the references were private individuals, the redactions of their names and contact information were not consistent with FOIA.

What "blank page with redactions" raises

The submission included pages that "appear to still have been made [redactions on], but upon which" the visible content was blank. The AG could not assess what was being withheld or whether the withholding was proper without seeing the original. The flag here is procedural: a custodian's redaction must be reviewable. If a redacted page shows nothing of what was redacted, an outside reviewer (the AG, a court, or the requester) cannot evaluate the redaction's basis.

Common questions

Are job applications submitted to a public agency releasable under Arkansas FOIA?

Yes, generally. Prior AG opinions and the AG here treat job applications and resumes as personnel records subject to release once exempt personal information is redacted.

Can a county redact references' names and contact information?

Generally, no, unless the references themselves are current or former public employees. The AG's office has consistently held that references' identities are not exempt under FOIA when contained in a non-exempt public record.

What information must be redacted from a public-employee personnel record?

The opinion lists the standard categories: home addresses, employee personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical information, undercover-officer identifiers, driver's license numbers, insurance coverage, tax information or withholding, payroll deductions, and banking information.

What if the AG hasn't seen the unredacted records?

The opinion is honest about its limits. Without unredacted records, the AG cannot pass on every specific redaction. The AG can opine on the legal framework and flag categories of redaction that appear questionable, but the final reviewer is a court if the requester challenges the redactions.

Why did the custodian get an AG opinion before releasing?

Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the custodian, requester, or subject of personnel or employee evaluation records may seek an AG opinion on whether release is consistent with FOIA. The opinion provides legal cover and clarifies the correct treatment.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998); prior AG opinions Ops. Att'y Gen. 2016-075, 2015-130, 87-070, 2010-044, 2015-072, 99-147, 2014-094, 2007-070, 2001-080, 2007-064, 2006-035, 2003-153, 2017-125, 2013-090, 2004-167, 2005-194, 2003-385, 98-126, 2016-055, 2001-112, 2001-022, 94-198, 2006-176, 2004-260, 2003-336, 98-001, 2016-129, 2016-118.

Source

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

Original opinion text

Opinion No. 2018-145
December 14, 2018
The Honorable Toby L. Davis
Perry County Judge
310 West Main Street
P. O. Box 358
Perryville, AR 72126
Dear Judge Davis:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). 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 a reporter with KARK-TV, Channel 4 and Fox 16, has requested copies of "all applications and resumes submitted to Perry County for the position of Office of Emergency Management … including [one employee's] application and resume," as well as "a copy of [the employee's] offer letter, current salary information and all other benefits received," along with other information from the employee's personnel file. You have attached several redacted documents that you have determined are responsive to the request. You have not, however, sent the documents in their unredacted form for me to review. You ask whether your decision to release the documents as redacted is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the decision to disclose the records is correct. But because I have not reviewed the unredacted documents, I cannot opine as to the propriety of all of the redactions that have been made or determine the basis for these redactions. I will set out the relevant definitions and standards.

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 seem to be met. The request was made to Perry County, which is a public entity subject to the FOIA. The request appears to pertain to public records. The FOIA defines public records 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 … carried out by a public official or employee…." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

As I understand it, the documents you submitted for my review are the job application of a successful candidate for a position with the county. This office has consistently maintained that a job application kept by a public entity qualifies as a "public record" and must be disclosed unless some specific exception provides otherwise.

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. Although the custodian in this instance has not expressly stated his determination of the type of record the documents are, it is apparent from the face of them that they are properly classified as the applicant's personnel record. Because the relevant exception in this instance appears to be the one for personnel records, I will limit my discussion to records of that type.

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 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 is generally open to public inspection and copying except "to the extent that disclosure would constitute 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 the scale tipped in favor of 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 records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

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));
• Employee personnel number (Ops. Att'y Gen. 2014-094, 2007-070);
• 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 number and photocopy of driver's license (Op. Att'y Gen. 2017-125, 2013-090);
• 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.

In my opinion, the decision to disclose the employee's job application is consistent with the FOIA. As stated above, this office has consistently opined that job applications kept by public entities are public records. Moreover, the job applications of public employees are considered those employees' personnel record that should be released with certain information that would constitute a clearly unwarranted invasion of the employee's personal privacy redacted.

I have not, however, been provided a copy of the records intended for release in their unredacted form. Accordingly, I cannot definitively opine as to propriety of all of the redactions that the custodian has made or determine the basis for these redactions. While it appears from the face of the records before me that some of the redactions, such as the applicant's personal contact information, are consistent with the FOIA, I cannot opine on whether other redactions are similarly consistent. Indeed, some redactions appear to be at least questionable, specifically, the decision to redact the names and contact information of the applicant's references. This office has consistently opined that such information, when contained in a non-exempt public record, is not exempt from disclosure. Additionally, the records sent for my review contain a number of what seem to be blank pages but upon which redactions appear to still have been made. Obviously, I cannot render any opinion as to these pages.

Sincerely,
LESLIE RUTLEDGE
Attorney General