Can an Arkansas state employee prevent release of her job application by asking that personal information stay private?

Plain-English summary

Shemekia Hicks asked the Arkansas Attorney General to review the Department of Workforce Services custodian's decision to release her job application as redacted. Hicks asked that her personal information not be disclosed. The custodian's notice also mentioned a resume, but the AG found no resume among the records reviewed.

The AG concluded that the redacted release of the application was consistent with the FOIA. The department is a public entity, and the opinion says a job application is a public record. It treats job applications as personnel records, which must be released unless disclosure would be a clearly unwarranted invasion of personal privacy. Under Young v. Rice, that question requires balancing the public interest in access against the person's privacy interest, with a thumb on the scale favoring disclosure. The opinion says release of job applications rarely reaches the level of a clearly unwarranted invasion. It does not list the information redacted from Hicks's application.

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.

What this means for you

State employees

If you are asked about releasing your job application, this opinion shows that your objection alone does not decide the FOIA question. The opinion says the privacy test is objective and that the person resisting disclosure must show why their privacy interest outweighs the public interest. Hicks's application was approved for release as redacted, but this opinion does not say which fields were removed.

Records custodians

The AG reviewed the actual application and approved the custodian's decision to release it as redacted. The opinion says a custodian first determines whether the document is a public record and then whether an exception allows it to be withheld. For a personnel record, apply the Young balancing test to the information at issue. This opinion provides no list of required redactions.

Common questions

Q: Did the AG approve release of Hicks's application? A: Yes. The AG concluded that releasing the application as redacted was consistent with the FOIA.

Q: Was Hicks's resume also reviewed?
A: No. The custodian's notice referred to a resume, but the AG said the records reviewed did not include one.

Q: Which personal details did the AG say should be removed? A: The opinion does not identify any particular redactions. It addresses the custodian's decision to release the application as already redacted.

Q: Does an employee's objection by itself bar release? A: No. The opinion says the privacy test is objective; the subject's view that release is unwarranted does not control the analysis.

Background and statutory framework

The opinion treats job applications and accompanying resumes as personnel records. It says such records must be released unless disclosure would constitute a clearly unwarranted invasion of personal privacy. Under Young v. Rice, a custodian first asks whether the information is personal or intimate enough to create more than a minimal privacy interest. If it is, the custodian weighs that interest against the public interest in disclosure. The opinion says job applications rarely meet the standard for withholding and approves this custodian's redacted release.

Citations and references

Statutes:

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

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2016-047
April 21, 2016
Shemekia Hicks, Office Manager
Arkansas Department of Workforce Services
523 East 6th Street
El Dorado, AR 71730
Dear Ms. Hicks:
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 have asked that your personal information not be disclosed. 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