Does retirement prevent release of a former Arkansas public-school employee's job application under FOIA?

Plain-English summary

Carol Blann, a retired Little Rock School District employee, invoked her right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG to review the District's decision to release a redacted copy of her old job application to a FOIA requester. The custodian had decided to release the application after redacting personal contact information and college transcripts. Blann argued that she had retired, was no longer employed, and that the requester "has no valid reason for accessing [her] records."

AG Leslie Rutledge had not seen the application and could not determine whether its specific release was proper. She gave general guidance on three points:

1. Retirement does not change the FOIA analysis. The AG cited Op. Att'y Gen. 2006-182, which collects earlier opinions concluding that the FOIA's personnel-records provisions apply to former employees. The fact that the subject is no longer an employee is not, by itself, a basis to refuse the request.
2. Job applications generally are subject to disclosure. The AG said a job application held by the district qualified as a public record and generally was a personnel record. Under the Young v. Rice balancing test, the district was likely not permitted to withhold this kind of record in full.
3. Standard redactions apply. The custodian should redact personal contact information (home address, personal phone number, personal email), Social Security numbers, medical information, school transcripts, dates of birth, marital status, and dependent information.

Blann also questioned the requester's reason for seeking the record. The opinion did not analyze that objection.

Currency note

This opinion was issued in 2016. 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

Former employees stay in the framework

The AG cited Op. Att'y Gen. 2006-182 for the rule that the personnel-records provisions apply to former employees. Retirement, by itself, did not authorize the district to withhold Blann's application.

Standard redaction list

For job applications, the AG's office has identified a list of categories that should be redacted before release:

• Personal contact information (home address, personal phone, personal email)
• Social Security number
• Medical information
• School transcripts
• Date of birth (Op. Att'y Gen. 2007-064)
• Marital status and dependents information (Op. Att'y Gen. 2001-080)

The opinion quoted an earlier AG opinion that educational background and work history reflect job qualifications and carry a public interest in disclosure.

Common questions

Q: I retired from Arkansas public service ten years ago. Can someone still ask for my old job application under FOIA? A: Yes. Retirement does not put your records outside the FOIA. The personnel-records framework still applies, and the Young v. Rice balancing test still rarely blocks release of a job application.

Q: What gets redacted before my old job application is released? A: Standard categories include home address, personal phone, personal email, Social Security number, medical information, school transcripts, date of birth, marital status, and dependent information.

Q: I gave the school district a college transcript with my application. Did the AG say it should be disclosed? A: No. The AG listed school transcripts among information to delete before releasing a job application.

Citations and references

Statutes:

• A.C.A. § 25-19-103(5)(A) (Supp. 2015) (definition of public record)
• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2015) (AG opinion procedure)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)

Cases:

• 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)

Source

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

Official summary

Request for review of the custodian's decision to release, with certain redactions, a former employee's application for employment, in response to a Freedom of Information Act ("FOIA") request. RESPONSE: I have not seen the job application at issue and therefore cannot opine specifically about the propriety of its release. Generally, however, the job application of a public employee is subject to public disclosure, provided that certain information may need to be deleted from the application before it is released. Among the categories of exempt information to be deleted are personal contact information (including home address and personal phone number and email), social security numbers, medical information, and school transcripts. The fact that the person is no longer an employee is not in and of itself a basis for the custodian to refuse a request for an application for employment. The job application of a successful applicant remains subject to the FOIA after an employee leaves a public agency.

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2016-025

March 14, 2016

Ms. Carol Blann
c/o Valerie Hudson, Executive Assistant
Office of the Deputy Superintendent
Little Rock School District
810 West Markham Street
Little Rock, AR 72201

Dear Ms. Blann:

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 the Little Rock School District ("LRSD") has received a FOIA request for a copy of your application for employment. The records custodian has determined that your application should be made available, after redacting personal contact information and education records such as college transcripts. You state that "[you] have retired from [LRSD] and [are] no longer employed," and that the requester "has no valid reason for accessing [your] records." You have asked for my opinion on what the LRSD is required to release.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. You have not provided me with your job application and I therefore cannot opine specifically about the propriety of its release. I can state generally, however, that the job application of a public employee is subject to public disclosure, provided that certain information may need to be deleted from the application

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

Ms. Carol Blann
Opinion No. 2016-025
Page 2

before it is released. Among the categories of exempt information to be deleted are personal contact information (including home address and personal phone number and email), social security numbers, medical information, and school transcripts. The fact that you are no longer a LRSD employee is not in and of itself a basis for LRSD to refuse a request for application for employment. The job application of a successful applicant remains subject to the FOIA after an employee leaves a public agency. 1

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:
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. 2

1
See, e.g., Op. Att'y Gen. 2006-182 (summarizing previous Attorney General opinions that conclude the FOIA's "personnel records" provisions apply to former employees and stating that "the fact that the officer is no longer an employee of the City does not dictate non-disclosure of the records"). 2 A.C.A. § 25-19-103(5)(A) (Supp. 2015).

Ms. Carol Blann
Opinion No. 2016-025
Page 3

I believe a job application that is kept by the LRSD clearly qualifies as a "public record" under this definition. 3 Accordingly, a job application must be released unless some exemption applies to prohibit its release.

II. Exceptions to disclosure.

In my opinion, the potentially relevant exemption is the one for "personnel records." While the FOIA does not d<~fine the term "personnel records," this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance r c rd that pertain to individual employees. 5 And this office and the two leading commentators on the FOIA have repeatedly observed that job applications and accompanying resumes, generally meet this definition. 6

Accordingly, a job application generally must be released unless doing so constitutes a clearly unwarranted invasion of personal privacy. 7 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 8 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 f rivate. The balancing takes place with a thumb on the scale favoring disclosure.

3
See Op. Att'y Gen. 2015-130 at n.2 (citing Op. Att'y Gen. 87-070, which found 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.").

4
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."

5
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).

6
E.g., Op. Att'y Gen. Nos. 2010-044; 2005-004, 2001-368; Watkins & Peltz, supra note 4, at 185- 87.
7
See, supra, note 3.
8
Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins & Peltz, supra note 4, at 191.

Ms. Carol Blann
Opinion No. 2016-025
Page 4

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 privacy interest. 10 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. 11 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. 12 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. 13

III. Application

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 14 But because job-applications rarely contain information the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, 15 I can state generally that the LRSD is likely not permitted to withhold your job application under the exemption for personnel records. 16 Nonetheless, certain information may need to be redacted from the application. Among the categories of exempt information to be deleted are social security numbers, medical information, school transcripts, and personal contact information. 17

10
Id. at 598, 826 S.W.2d at 255.
11
Id., 826 S.W.2d at 255.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198.
14
Op. Att'y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001.
15
See Op. Att'y Gen. Nos. 2010-070; 2009-032.
16
Op. 2009-032 ("[T]he information contained in job applications such as 'educational background and work history' 'reflect job qualifications and a public interest therefore attaches to this information,"' quoting Op. Att'y Gen. 2006-165, at 9-10). 17 Id. (and opinions and Arkansas Code sections cited therein).

Ms. Carol Blann
Opinion No. 2016-025
Page 5

In conclusion, although I have not seen your application with the LRSD and therefore cannot opine specifically about its release, I can state generally that the custodian's decision to release this kind of record-after redacting personal contact information and college transcripts-is consistent with the FOIA. 18 The provisions of the FOIA that govern the release of public employees' job applications apply to the records of former employees. Therefore, in my opinion, the custodian cannot consider the fact that you are no longer employed with the LRSD as a basis, on its own, for declining to release your application.

Sincerely,
< :>/~
LESLIE Run~
Attorney General

18
Other discrete pieces of information to be redacted if contained in a current or former employee's job application include date of birth (Op. Att'y Gen. 2007-064), medical information (Op. Att'y Gen. 2003- 153), and marital status and information about dependents (Op. Att'y Gen . 2001-080).