Can an Arkansas state employee block a FOIA request for their job application and resume, including the names and addresses of their previous employers?

Plain-English summary

Aaron Johnson, a TANF Program Supervisor at the Arkansas Department of Workforce Services (ADWS), invoked his statutory right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether the custodian's decision to release his job application and resume was consistent with the FOIA. Someone had requested his ADWS application, the custodian had decided to release a redacted version of both the application and the attached resume, and Johnson objected to two specific elements: the names and addresses of his previous employers listed on the application, and the resume as a whole, which he characterized as an optional attachment that the requester had not specifically sought.

AG Leslie Rutledge concluded the custodian was right. Three points anchored the opinion:

1. The records are public records under the FOIA. Job applications and accompanying resumes, held by a public employer, fall within the FOIA's broad definition of public records under § 25-19-103(5)(A).

2. The applicable exception is the "personnel records" exception under § 25-19-105(b)(12), and the Young v. Rice balancing test applies. That test puts a thumb on the scale favoring disclosure: the privacy interest must be greater than de minimis, and if it is, the custodian must still weigh it against the public's interest in disclosure. The person resisting disclosure bears the burden of showing that their privacy interest outweighs the public's interest. Names and addresses of previous employers go to professional experience and qualifications, in which the public has a significant interest. The AG concluded their release is not a "clearly unwarranted invasion of personal privacy."

3. The resume is a public record too. The AG made two distinct observations about Johnson's resume objection. First, on the substance: a public employee's resume held by the employer is generally a non-exempt public record. The custodian's decision to release the resume as redacted was consistent with the FOIA. Second, on Johnson's argument that the requester had not asked for the resume: the AG could not address that. The AG's statutory duty under § 25-19-105(c)(3)(B) is to opine on whether the records are exempt from disclosure, not on whether a specific document is responsive to a specific request. Identifying responsive records is the custodian's job. Finally, the AG flagged a recurring rule that runs through FOIA practice: a requester's motive or reason for asking is irrelevant to whether a public record must be released.

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

Why job applications and resumes are personnel records

The opinion says job applications and accompanying resumes held by a public employer are public records. It treats them as personnel records for this request, so they must be released unless doing so would be a clearly unwarranted invasion of personal privacy. The AG applied the Young v. Rice balancing test to that question.

The Young v. Rice test, applied to Johnson's specific objection

Under Young, the custodian first asks whether the information at issue is of a personal or intimate nature giving rise to a privacy interest above the de minimis level. If not, the thumb on the scale tips the result toward disclosure. If yes, the custodian weighs the privacy interest against the public's interest in disclosure.

Johnson objected to the names and addresses of his previous employers. The AG treated that information as professional experience and qualifications, not personal or intimate information. The public has a real interest in knowing the prior employment background of a state employee. The thumb on the scale favors disclosure, and the privacy interest does not overcome it. Release as redacted is consistent with the FOIA.

The AG reviewed the resume and concluded that the custodian's decision to release it as redacted was consistent with the FOIA. The opinion does not list which details were redacted.

Requester motive is irrelevant

Johnson's argument that the requester did not specify the resume in the FOIA request mixed two different ideas. The FOIA does not require requesters to explain why they want records, and the requester's motive (or lack of stated reason) is irrelevant to whether a record must be released. But whether a specific document is in fact responsive to the request is a separate factual question. The AG's role under § 25-19-105(c)(3)(B) is limited to the exemption analysis; the responsiveness question stays with the custodian.

Common questions

Q: Can a public employee in Arkansas block release of their job application under the FOIA? A: Generally no. Job applications held by a public employer are personnel records under the FOIA. The custodian applies the Young v. Rice balancing test, and standard application content (employment history, qualifications, prior-employer names and addresses) does not create a privacy interest strong enough to overcome the public's interest in seeing the records.

Q: Are the names and addresses of my previous employers protected from FOIA disclosure? A: Under this opinion, no. The AG treated that information as professional experience and qualifications. The public has a significant interest in seeing it, and releasing it is not a "clearly unwarranted invasion of personal privacy."

Q: What about my resume? Is that a public record? A: A resume held by a public employer is generally a non-exempt public record. Releasing it as redacted is consistent with the FOIA.

Q: Did the AG identify what was redacted from Johnson's resume? A: No. The AG said she had reviewed the resume and found the custodian's decision to release it as redacted consistent with the FOIA, but the opinion does not list the redactions.

Q: Can the requester refuse to tell me why they want my application? A: Yes. Requester motive is not part of the FOIA analysis. If the record is a public record and no exception applies, the custodian must release it without inquiring into why the requester wants it.

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 for personnel and evaluation records)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)

Source

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

Official summary

Is the decision of the custodian of records to disclose an employee's job application in response to a Freedom of Information Act (FOIA) request consistent with provisions of the FOIA? RESPONSE: Based on my review of the records, the custodian's decision to release the job application as redacted is consistent with the Act.

Original opinion text

Opinion No. 2016-043
April 21, 2016
Aaron W. Johnson
TANF Program Supervisor
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Department of Workforce Services
818 Highway 62-65
P. O. Box 280
Harrison, AR 72601
Dear Mr. Johnson:
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 someone has made a FOIA request for your job application for employment with the Arkansas Department of Workforce Services (ADWS). The custodian of records for ADWS has decided that the requested information is not exempt from disclosure and that "to be in compliance with the Arkansas FOIA, a redacted copy of your job application and resume will be provided to the person requesting this information." You state that you understand your employment application is not exempt from disclosure, but you object to the release of the names and addresses of your previous employers which are listed on your application. You also object to the release of your resume because, you state, it "was not specified in [the] FOIA request" and it "was an optional attachment that was not required for application or employment with ADWS." You state: "I feel that my resume and the names and addresses of my previous employers are irrelevant to the issues of [the FOIA requester's] concern and will constitute an unnecessary release of my private information." RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the custodian has properly decided that the names and addresses of your previous employers are subject to disclosure. With regard to your resume, having reviewed the record, it is my opinion that the custodian's decision to release it as redacted is consistent with the FOIA. Please note, however, that I cannot address your concern that the FOIA requester did not seek your resume. My duty to issue an opinion under Ark. Code Ann. § 25-19- 105(c)(3)(B) arises after the records have been located and is limited to reviewing the custodian's decision as to "whether the records are exempt from disclosure." Identifying records responsive to the request is a task uniquely within the custodian's purview, both as a statutory matter and as a practical matter because it requires factual determinations that are outside the scope of an opinion from this office. I must also note that a person's motive or reason for requesting records pursuant to the FOIA is ordinarily irrelevant to whether a record should be released. If the record is a "public record" under the FOIA and is subject to no exception, it must be released without regard to the requester's motive for seeking access. A resume that is maintained by a public employer generally constitutes a non-exempt "public record" under the FOIA. 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 Arkansas Department of Workforce Services, 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. I believe it is clear that job applications and resumes accompanying those applications are public records under this definition. II. Exceptions to disclosure As public records, job applications and resumes must be released unless some exception prohibits their release. In my opinion, the relevant exception based on your objections is the one for "personnel records." 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. And this office and the two leading commentators on the FOIA have repeatedly noted that job applications and accompanying resumes generally meet this definition. Accordingly, those records must be released unless doing so constitutes 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 a thumb on the scale favoring 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 minimus privacy interest. 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. 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 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. III. Application Whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is a question of fact. With regard, however, to job applications and resumes, this office has repeatedly indicated that the release of such records rarely rises to such a level. Specifically with regard to names and addresses of previous employers listed on a job application, I believe it is clear that the release of this type of information does not rise to the level of a "clearly unwarranted invasion of personal privacy." As this office has previously noted, the public clearly has a significant interest in information reflecting employees' professional experience and qualifications. In sum, it is my opinion that the custodian has properly decided that the names and addresses of your previous employers listed on your employment application are subject to disclosure under the FOIA. With regard to your resume, it is my opinion that the custodian's decision to release this kind of record is consistent with the FOIA because a public employee's resume ordinarily is a non-exempt "public record." Furthermore, having reviewed your resume, it is my opinion that the custodian's decision to release this record as redacted is consistent with the FOIA. Sincerely, LESLIE RUTLEDGE Attorney General