If I applied for a public job and never got hired, can I block the city from releasing my application under FOIA?

Plain-English summary

Angela Johnson applied for the position of FOIA Coordinator at the City of Little Rock. The City received a FOIA request for "all applications submitted to the City of Little Rock for the open position of FOI Coordinator." The custodian decided to release Johnson's resume with redactions of address, DOB, phone, and Social Security info. Johnson objected and asked the AG for review.

The AG declined. The reason: under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the AG can review a custodian's decision only at the request of (1) the custodian, (2) the requester, or (3) the subject of personnel or employee-evaluation records. The AG had a "longstanding interpretation" that job applications of persons who are not yet public employees do not qualify as "personnel records" unless the applicant is hired. Since Johnson was just an applicant and had not been hired, her resume was not a personnel record, and she was not a "subject" entitled to seek AG review.

The AG noted the existing scholarly disagreement on this point. Watkins, Peltz-Steele, and Steinbuch in The Arkansas Freedom of Information Act (6th ed., 2017) take a different view, and trial courts have split. But the AG's office had stuck with the narrower reading.

Practical implications:

• Even though the AG could not review, Johnson could still pursue judicial review under Ark. Code Ann. § 25-19-107, filing in Pulaski County Circuit Court or the circuit court of her residence.
• If the City had hired Johnson, her application would have become a personnel record and the AG could have reviewed.
• The personal-info redactions (address, DOB, phone, SSN) the City had already made would still be required; the AG noted that those exemptions apply to applicants too because "exceptions should be narrowly construed to exempt the fewest records."

The AG also reiterated the general framework: a record must be (1) requested from a covered entity, (2) a public record, and (3) not subject to an exemption. The City and the records satisfied (1) and (2). The AG's review just doesn't extend to (3) when the subject of the record is a non-employed applicant.

Currency note

This opinion was issued in 2019. 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: Why is an applicant not a "subject" of personnel records?
A: The AG's logic: "personnel records" are records about employees. Applicants are by definition not yet employees. So their applications are not "personnel records." The AG's review authority is limited to personnel and evaluation records, so the applicant cannot use that procedural channel.

Q: Are the records still public?
A: Yes. The records are still public records under § 25-19-103(7)(A). The custodian's decision to release them is still subject to FOIA's general framework. The applicant just cannot get the AG to weigh in. Judicial review under § 25-19-107 remains.

Q: What is the scholarly disagreement here?
A: Watkins, Peltz-Steele, and Steinbuch's leading FOIA treatise argues that applications kept by a public entity are personnel records of the agency's evaluation function (not records about the applicant per se), so the personnel-records exemption analysis should run. Two trial courts have split. Until the Arkansas Supreme Court resolves it, the AG's narrower reading controls AG review but not the underlying disclosure question.

Q: What about the privacy redactions the City made?
A: Those still hold. Even outside the personnel-records exemption framework, FOIA's general structure protects items like SSNs, home addresses, and DOBs.

Q: What if I want to keep my application out of the public record entirely?
A: For now, the AG's view means non-hired applicants cannot use the AG-review channel to push back. Judicial review is available, but the success rate of such challenges has been limited by the AG's framework.

Background and statutory framework

The AG's review authority in personnel-record disputes is created by Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lists three eligible requesters: the custodian, the requester (the FOIA seeker), or "the subject of personnel or employee-evaluation records." The AG has long held that "subject" requires actual employee status, not applicant status (Ops. Att'y Gen. 2016-004, 2014-127, 2009-156).

The narrow-construction principle, that FOIA exceptions are construed narrowly (Stilley v. McBride, 332 Ark. 306, 313 (1998), and Ops. Att'y Gen. 2015-057, 2015-024), runs in the opposite direction: it favors disclosure, not the applicant's privacy claim.

The treatise disagreement is acknowledged in Watkins, Peltz-Steele, and Steinbuch, The Arkansas Freedom of Information Act (6th ed., 2017), at 200-02. That treatise argues for a broader reading of "personnel records" to include records about applicants. The AG's office has not adopted that view.

Section 25-19-107 supplies the judicial-review path that an applicant can still use even when the AG cannot review.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review authority)
• Ark. Code Ann. § 25-19-103(7)(A) (public-records definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-107 (judicial review)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

Opinion No. 2019-058
September 13, 2019

Angela Johnson
c/o FOIA Coordinator, City of Little Rock
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Johnson:

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. 2017). This subdivision 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 the City of Little Rock has received a FOIA request for "all applications submitted to the City of Little Rock for the open position of FOI Coordinator." The records custodian has determined that your resume is a personnel record that is subject to disclosure after sensitive personal information such as address, date of birth, telephone number or Social Security information has been redacted. You object to the release of your resume, citing violations of your privacy and professional integrity. You ask whether the custodian's decision to release the requested record is consistent with the FOIA.

RESPONSE

I am unable to opine as to the custodian's decision in this matter because it does not appear from your correspondence that you are an employee of a public entity, but rather, as yet, only an applicant. As stated above, subdivision 25-19-105(c)(3)(B)(i) only authorizes a custodian, requester, or the subject of personnel or employee-evaluation records to seek my opinion as to the custodian's decision with respect to such records. It has been the longstanding interpretation by this office that job applications of persons who are not already public employees do not qualify as personnel records unless such persons are hired. While your request is, therefore, outside the scope of my review, I can provide a basic legal framework as a guide.

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, or discrete portions of the document, to be withheld. It is this final issue that I cannot resolve in this opinion.

The FOIA only authorizes me to render an opinion with respect to the exemptions relating to public-employee records, either personnel or evaluation records. This office has consistently opined that a "personnel record" is any record that is not an employee evaluation that pertains to an individual employee. Personnel records are open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

As noted above, your correspondence suggests you are not yet a City employee, but only an applicant. Since applicants, by definition, are neither "personnel" nor "employees," their job applications and resumes do not qualify as personnel records unless they are hired. Accordingly, the very limited exemption to the disclosure of personnel records would not apply. This result is required by the rule that, when there is a reasonable doubt about an exception's meaning or application, the exception should be narrowly construed to exempt the fewest records.

Since you state that you have not been interviewed for the position, it seems clear that the record in dispute does not qualify as a personnel record. Therefore, your objection to the record's release is beyond the scope of my review.

As a final matter, please note this opinion does not preclude you from pursuing judicial remedies afforded by the FOIA. The custodian's decision is subject to court review to enforce their rights granted by the FOIA. Such an appeal may be made to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party.

Sincerely,

LESLIE RUTLEDGE
Attorney General