Is an Arkansas state employee's job application a public record that must be released as redacted under the FOIA when the employee asks for review?

Plain-English summary

Brenda Steele, a Workforce Specialist at the Arkansas Department of Workforce Services, asked the AG under A.C.A. § 25-19-105(c)(3)(B)(i) to review the custodian's decision to release a redacted copy of her job application in response to a FOIA request. The original notice from ADWS had said both the application and resume would be released, but the AG's review of the actual records found no resume in the file.

AG Leslie Rutledge concluded the custodian was right to release the application as redacted. The reasoning tracked the AG's standard FOIA framework:

1. The records are public records under § 25-19-103(5)(A). ADWS is a public entity, and job applications are records "maintained in public offices or by public employees within the scope of their employment."
2. The applicable exception is the personnel-records exception under § 25-19-105(b)(12). That exception lets a custodian withhold a record only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."
3. The Young v. Rice balancing test (with the thumb on the scale favoring disclosure) does not block release here. Job applications rarely rise to the level of a clearly unwarranted invasion of personal privacy. After standard redactions, release is consistent with the FOIA.

The AG flagged in a footnote that one record dated August 18, 2015 might or might not be an employee-evaluation record subject to § 25-19-105(c)(1) instead. Thomas v. Hall's three-part test resolves that classification: a record is an employee-evaluation record only if (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) detailing the employee's job performance. Because Steele was not suspended or terminated, the more restrictive evaluation rule would block release of any record that actually fit that definition. The AG could not determine on the face of the record which category it fell into; that classification is a question of fact for the custodian.

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

The split between personnel records and evaluation records

The Arkansas FOIA treats employee records under two separate exceptions, with two very different defaults:

• Personnel records. Open by default. Closed only when Young v. Rice balancing shows a privacy interest greater than de minimis and that interest outweighs the public's interest in disclosure.
• Employee evaluation or job performance records. Closed by default. Open only when all four of the following are true: the employee was suspended or terminated; the administrative process has reached a final resolution; the record formed a basis for the discipline; and there is a compelling public interest in disclosure.

Thomas v. Hall tightens the line between the two categories. An "evaluation record" is one (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details the employee's performance or lack of performance on the job. Outside that three-part definition, the record is a personnel record subject to the Young balancing.

Why a job application is a personnel record

A job application pre-dates the employment relationship, so it cannot have been created by or at the behest of the employer to evaluate an existing employee. It is a personnel record. The Young balancing applies.

Under Young, the custodian first asks whether the information 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 toward disclosure. Job applications carry information about prior employment, education, and qualifications. None of that is personal or intimate in the way Young contemplates. The application is releasable, subject to standard redactions for items like Social Security number, date of birth, home address, banking information, and personal email.

The subject's view does not control

Stilley v. McBride put the burden of proving an exemption on the custodian (or, by extension, on the person opposing disclosure). The fact that the subject of a record finds disclosure unwarranted is irrelevant under the Young analysis, which is objective. Steele's reservations about disclosure carried no weight in the legal test; what mattered was whether her objective privacy interest in the application's content rose above de minimis. The AG concluded it did not.

Common questions

Q: Can I block release of my Arkansas state job application by objecting to it?
A: Not just by objecting. Under Young v. Rice the test is objective, not subjective. You would need to identify content in the application that creates a privacy interest above the de minimis level. Standard application content (education, employment history, qualifications, references) generally does not.

Q: What gets redacted from a job application before release?
A: Standard redactions across AG opinions include date of birth, Social Security number, medical information, driver's license number, banking information, home address, unlisted phone number, personal email address, marital status, dependent information, and (in undercover law-enforcement context) identifying information.

Q: What if a record in my file is an employee-evaluation record rather than a regular personnel record?
A: Then the much more restrictive § 25-19-105(c)(1) rule applies. The record is closed unless you were suspended or terminated, the administrative process has reached final resolution, the record formed a basis for the discipline, and there is a compelling public interest. Whether a particular record meets Thomas v. Hall's three-part definition is a question of fact for the custodian.

Q: Does the requester have to explain why they want my application?
A: No. Requester motive is not part of the FOIA analysis. The custodian decides whether the record is a public record and whether any exception applies; the requester's reasons are irrelevant.

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)
• A.C.A. § 25-19-105(c)(1) (employee evaluation 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)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Official summary

Is the decision of the custodian of records to release 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 performance record as redacted is consistent with the Act.

Original opinion text

Opinion No. 2016-044
April 21, 2016
Brenda Steele
Workforce Specialist
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Department of Workforce Services
P. O. Box 279
Helena, AR 72342
Dear Ms. Steele:
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 ask whether the
custodian's decision is consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the records at issue, it is my opinion that the custodian's
decision to release your job application as redacted is consistent with the FOIA.
My review indicates that the records do not include a 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 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 a job application is a public record under this definition.
Accordingly, your application must be disclosed unless some specific exception
provides otherwise.
II. Exceptions to disclosure
It appears that the most relevant exception in this case 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, this office has repeatedly indicated that the release of
such records rarely rises to such a level. Having reviewed your job application,
it is my opinion that the custodian's decision to release it as redacted is consistent
with the FOIA.
Sincerely,
LESLIE RUTLEDGE
Attorney General