Can a school district refuse to release a successful applicant's job application and resume under Arkansas FOIA as a personnel-records privacy invasion?

Plain-English summary

Frank Hammond asked the Pine Bluff School District for the job application and educational background of the successful applicant for the position of Executive Director of Operations, plus other records detailing the new employee's service and training. The custodian made three determinations and denied the request: (1) the documents were personnel records whose disclosure would constitute a clearly unwarranted invasion of personal privacy; (2) personal contact information in the personnel file was exempt; and (3) employee evaluation or job performance records could not be released until administrative resolution of any suspension or termination proceeding plus a compelling public interest.

The AG explained the framework but flagged the underlying conclusion as likely wrong. The AG had not seen the documents, so the office could not opine on any particular record. But the AG could say in general terms that an applicant's job application and resume are typically personnel records that should be released, because their disclosure rarely rises to the level of a clearly unwarranted invasion of personal privacy.

The balancing test described in Young v. Rice puts a thumb on the scale favoring disclosure, and the person resisting disclosure bears the burden of showing that a privacy interest outweighs the public's interest. The AG had repeatedly opined that release of applications and resumes rarely amounts to a clearly unwarranted invasion of privacy. Prior opinions had also said that names of personal references on those documents are subject to disclosure.

That does not mean the documents go out unredacted. Even when a document on the whole must be released, specific items must be redacted: dates of birth, Social Security numbers, medical information, undercover officer identities, driver's license numbers, insurance coverage, tax information, payroll deductions, banking information, unlisted phone numbers, home addresses, personal email addresses, marital status, and information about dependents. Those items get pulled before release.

The AG's bottom line: the custodian should evaluate each responsive document under the stated standards and redact protected details where needed. Without having seen the records, the AG said withholding the application and resume appeared inconsistent with the FOIA.

Currency note

This opinion was issued in 2015. 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

The classification framework is the same as in Opinions 2015-125 and 2015-129. A document held by a public school district is a public record under § 25-19-103(5)(A) and must be released unless an exemption applies. The relevant exemption for a successful applicant's job application and resume is the personnel-records exemption in § 25-19-105(b)(12): "[P]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

The "personnel records" definition the AG has consistently used covers all records pertaining to individual employees other than evaluation/job-performance records. Job applications and resumes for new public employees plainly meet that definition. The leading FOIA treatise (Watkins and Peltz) and a long line of AG opinions (e.g., 2010-044, 2005-004, 2001-368) treat applications and accompanying resumes as personnel records.

The balancing test from Young v. Rice has two steps. First, the custodian assesses whether the information in the document is of a personal or intimate nature giving rise to more than a de minimis privacy interest. Second, if such an interest exists, the custodian weighs it against the public's interest in disclosure. The exceptions are narrowly construed, and the party resisting disclosure bears the burden (Stilley v. McBride).

For job applications and resumes, the AG had repeatedly indicated that release rarely rises to the level of a clearly unwarranted invasion of personal privacy. AG Opinion 2014-123 also said that the names of personal references listed on a resume or application are subject to disclosure.

The AG's redaction list mirrors the redactions discussed in companion 2015 opinions: dates of birth of public employees; Social Security numbers; medical information; undercover law enforcement officer identities; driver's license numbers; insurance coverage; tax information or withholding; payroll deductions; banking information; unlisted telephone numbers; home addresses (§ 25-19-105(b)(13)); personal email addresses; marital status; and dependent information. Those items are stripped from a document before release even when the document as a whole must be released.

Common questions

Can the school district just refuse to release the successful candidate's resume?

The AG said the custodian's decision to withhold this current employee's application and resume was likely contrary to the FOIA. Such records ordinarily should be released, although the custodian must assess each record and redact protected personal details.

Are personal references redacted out of the resume?

No. AG Opinion 2014-123 (and the opinions cited therein) had held that names of personal references on a resume or application are subject to disclosure. They are not in the redaction list.

What about the applicant's home address?

Ark. Code Ann. § 25-19-105(b)(13) protects home addresses of most public employees, so those should be redacted before release. Personal email addresses (Op. Att'y Gen. 2004-225) and unlisted telephone numbers (Op. Att'y Gen. 2005-114) get the same treatment.

Does an applicant's privacy interest ever outweigh the public's interest?

Rarely, for documents of this kind. The AG's office has repeatedly indicated that release of applications and resumes rarely rises to the level of a clearly unwarranted invasion of personal privacy. The burden is on the person resisting disclosure to show otherwise.

Are unsuccessful applicants' resumes also subject to release?

The opinion concerned the successful applicant for a school district position. It did not decide how the privacy test applies to an unsuccessful applicant's records.

Citations

• Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identity exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review channel)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on party resisting disclosure)
• Op. Att'y Gen. 87-070 (applications as records of performance of public officials reviewing them)
• Op. Att'y Gen. 2014-123 (references on a resume are subject to disclosure)
• Op. Att'y Gen. 2010-044, 2005-004, 2001-368 (job applications and resumes are personnel records)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed. 2009)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/
• Official PDF: https://ag-opinions.s3.amazonaws.com/uploads/2015-130.pdf

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-130

October 30, 2015

Frank Hammond
c/o Pine Bluff School District
512 South Pine Street
P. 0. Box 7678
Pine Bluff, AR 71601

Dear Mr. Hammond:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on A.C.A. § 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 you have requested the job application and educational background of the successful applicant for the position of Executive Director of Operations at the Pine Bluff School District ("PBSD"), and other records detailing the employee' s service and training in certain areas. The custodian of records for the PB SD has made three determinations with respect to the requested records: (1) the requested documents are personnel records and disclosure would constitute a clearly unwarranted invasion of personal privacy; (2) personal contact information that may be contained in a PBSD employee's personnel file is exempt from public disclosure under the FOIA; and (3) a public employee's evaluation or job performance records, including preliminary notes and other materials, are exempt from disclosure until there has been a final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate, and there is a compelling public interest in their disclosure. You ask whether the aforementioned decisions are consistent with the FOIA.

323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682~8084 ARKANSASAG.GOV

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Frank Hammond
Opinion No . 2015-130
Page 2

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Not having seen any of the records at issue, I cannot opine about any particular records. I can, however, set out the legal standards the custodian must apply to determine whether two categories of documents that were requested-job application and resume of a current employee-must be disclosed. And I can opine generally, for the reasons explained below, that the custodian's decision to withhold such records appears inconsistent with the FOIA. But it may be necessary to redact some discrete pieces of the applicant's personal information prior to the release of a job application or resume.

DISCUSSION

I. General standards governing disclosure.

Responsive documents 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 documents must constitute public records. Third, no exceptions allow the documents to be withheld.

The first two elements appear met in this case. As for the first element, the documents are held by the Pine Bluff School District, 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. 1

1
A.C.A. § 25-19-103(5)(A) (Supp. 2015).

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Frank Hammond
Opinion No. 2015-130
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I believe it is clear that job applications and resumes accompanymg those applications are public records under this definition. 2

II. Exceptions to disclosure

As public records, an application and resume must be released unless some exemption prohibits their release. In my opinion, the potentially relevant exemption is the one for "personnel records." 3 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. 4 And this office and the two leading commentators on the FOIA have repeatedly noted that job applications and accompanying resumes generally meet this definition. 5 Accordingly, those records must be released unless doing so constitutes a clearly unwarranted invasion of personal privacy. 6 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 7 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. 8

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 minimus 2 See Op. Att'y Gen. 87-070 (finding that applications are "a record of the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate."). 3 A.C.A. § 25-19-105(b )(12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter .... [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 4 E.g., Op. Att'y Gen. 2007-008 (and opinions cited therein). See also John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT, 187 (m & m Press, 5th ed., 2009). 5 E.g., Op. Att'y Gen. Nos. 2010-044; 2005-004, 2001-368; Watkins & Peltz, supra note 4, at 185-87.

6
See, supra, note 3.
7
Youngv. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
8
Watkins & Peltz, supra note 4, at 191.

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Frank Hammond
Opinion No. 2015-130
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privacy interest. 9 If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. 10 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. 11 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
. . 12
ob~ectlve.

III. Application

Whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is a question of fact. 13 With regard, however, to applications and resumes, this office has repeatedly indicated that the release of such records rarely rises to such a level. 14 And this office has previously specifically opined that the names of personal references listed on a resume or job application are subject to disclosure. 15

I can opine generally, therefore, that the custodian's decision to withhold the current employee's job application and resume is likely contrary to the FOIA. Such records ordinarily should be released because their release typically does not rise to the level of a clearly unwarranted invasion of personal privacy. I should also note, however, that 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:

9
Id. at 598, 826 S.W.2d at 255.
10
Id., 826 S.W.2d at 255.
11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12
E.g., Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198.
13
Op. Att'y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001.
14
Op. Att'y Gen. 20 I 0-070.
15
E.g., Op. Att'y Gen. 2014-123 (and opinions cited therein).

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Frank Hammond
Opinion No. 2015-130
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• dates of birth of public employees (Op. 2007-064);

• social security numbers (Ops. 2006-035, 2003-153);

• medical information (Op. 2003-153);

• any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(l0));

• driver's license numbers (Op. 2007-025);

• insurance coverage (Op. 2004-167);

• tax information or withholding (Ops. 2005-194, 2003-385);

• payroll deductions (Op. 98-126);

• banking information (Op. 2 00 5-194);

• unlisted telephone numbers (Op. 2005-114);

• home addresses of most public employees (A.C.A. § 25-19-105(b)(l3)); personal e-mail addresses (Op. 2004-225); and

• marital status of employees and information about dependents (Op. 2001- 080).

In sum, the custodian should apply the foregoing definitions and standards for disclosure to each individual record believed to be responsive to the FOIA request. While I have not seen the records at issue, I believe the relevant question as to a job application and resume is whether their release would constitute a "clearly unwarranted invasion of personal privacy" under the test described above. Unless the records contain some detailed information of a personal nature, it is unlikely they are exempt from disclosure under this test.

Sincerely,

• ~/~
  LESLIE RUT~
  Attorney General