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 the FOIA definition. ADWS is a public entity, and the opinion says a job application is a public record.
2. The applicable exception is the personnel-records exception. The opinion says those records must be released unless doing so 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. The opinion says that releasing job applications rarely rises to the level of a clearly unwarranted invasion of personal privacy. The AG therefore concluded that releasing this application as redacted was consistent with the FOIA.

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 the opinion treats the application as a personnel record

The opinion says that this office has consistently treated personnel records as records other than employee evaluation and job performance records that pertain to individual employees. It also says job applications and accompanying resumes generally meet that definition. The records therefore must be released unless release would constitute a clearly unwarranted invasion of personal privacy.

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 the privacy interest is merely de minimis, the thumb on the scale favoring disclosure outweighs it. If the interest is greater, the custodian weighs it against the public interest in disclosure. The opinion says the release of job applications rarely rises to the level of a clearly unwarranted invasion of personal privacy.

The subject's view does not control

The opinion says that the person resisting disclosure bears the burden of showing that the privacy interest outweighs the public interest. It also says that the subject's view that release is unwarranted is irrelevant because the Young test is objective.

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 did the AG decide about this request?
A: The AG decided that the custodian's decision to release the job application as redacted was consistent with the FOIA. The AG's review found no resume among the records at issue.

Citations and references

Statutes:

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2015) (AG opinion procedure)

Cases:

• Young v. Rice

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