Can the public get a copy of a state agency employee's job application through an Arkansas FOIA request, and what has to be redacted?

Plain-English summary

Delois Hare, an Arkansas Department of Workforce Services (ADWS) employee, learned that someone had filed a FOIA request for the documents constituting her application for employment with ADWS. The ADWS custodian decided the records were not exempt and intended to release them. Hare asked the AG, under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), whether that decision was consistent with FOIA.

The AG faced a procedural complication: Hare did not provide copies of the documents the custodian intended to release. So the AG could not give a specific yes-or-no on her particular application. Instead, the opinion gave a general framework that fits typical job applications. The framework:

1. Job applications are public records. Documents held by a public entity that record the entity's performance of public functions are "public records" under § 25-19-103(5)(A). The hiring decision is a public function (citing Op. Att'y Gen. 87-070).

2. Personnel-records exception applies. A job application is a "personnel record" under § 25-19-105(b)(12). It must be released unless disclosure would constitute a "clearly unwarranted invasion of personal privacy."

3. Young v. Rice balancing test. The Arkansas Supreme Court has set up a two-step test: (a) is there a more-than-de-minimis privacy interest? (b) if so, does that interest outweigh the public's interest in disclosure? The thumb is on the disclosure side, and the burden is on the person resisting disclosure (Stilley v. McBride).

4. Job applications rarely meet the privacy-interest threshold. AG opinions had repeatedly indicated that job applications "rarely" contain information whose disclosure would be a clearly unwarranted invasion of privacy (citing Op. Att'y Gen. 2010-070, 2009-032). Educational background and work history are precisely the information that bears on job qualifications, which is exactly what the public has an interest in inspecting.

5. Required redactions. Categories of information that must be redacted from a releasable application include:

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

So the AG's bottom-line guidance: assuming the application contained standard application content, the custodian's decision to release it (after the required redactions) was consistent with FOIA.

The AG also flagged a wrinkle in footnote 14: if the application at issue was for a promotion or transfer Hare did not get, the analysis may differ. Citing Op. Att'y Gen. 2014-127, the AG noted that the public interest may be lower and the privacy interest higher for interview score sheets pertaining to an unsuccessful promotion attempt. But job applications themselves rarely fall into that different-treatment zone.

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 two-track FOIA framework for employee records

Arkansas FOIA recognizes two exemption categories for employee-related records:

• Personnel records (§ 25-19-105(b)(12)): releasable unless disclosure would be a "clearly unwarranted invasion of personal privacy." Job applications fall here.
• Employee evaluation or job performance records (§ 25-19-105(c)(1)): much more protected; releasable only on the four-part test (suspension or termination, finality, basis, compelling public interest).

A job application is a personnel record. It is everything other than an evaluation/job-performance record that pertains to the individual employee. Watkins and Peltz's The Arkansas Freedom of Information Act (5th ed. 2009) had cataloged this distinction.

The Young v. Rice test in detail

The two steps:

1. Personal/intimate threshold. Is the information of a personal or intimate nature, giving rise to a more-than-de-minimis privacy interest? If not, the disclosure-favoring thumb on the scale wins, and the document is released.

2. Balancing. If the privacy interest is more than de minimis, the custodian weighs it against the public's interest in disclosure. Because exceptions must be narrowly construed (under Stilley v. McBride), the person resisting disclosure bears the burden. The subjective preferences of the employee (whether the employee wants the records out) are irrelevant; the test is objective.

For typical job application content (name, education, work history, references, application essays), step one rarely produces a more-than-de-minimis privacy interest. The information is the kind that the public has a stake in seeing (the qualifications of someone seeking a publicly funded job). Educational background and work history reflect job qualifications and carry a public interest, as the AG had stated in Op. Att'y Gen. 2006-165.

Why specific items still get redacted

Even when a document is releasable as a whole, discrete pieces of personal data must be cut. The list is long:

• Personal contact information (Ark. Code Ann. § 25-19-105(b)(13) and Op. Att'y Gen. references): home address, personal phone, personal email.
• Social Security numbers (Op. Att'y Gen. 2006-035, 2003-153).
• Medical information (Op. Att'y Gen. 2003-153).
• School transcripts. Educational background can be released (degrees earned, dates), but transcripts (including grades) are typically not.
• Date of birth (Op. Att'y Gen. 2007-064).
• Marital status and dependents (Op. Att'y Gen. 2001-080).

These redactions apply even though the underlying document is releasable.

The unsuccessful-promotion wrinkle

The AG's footnote 14 raised a separate issue. If the application at issue was for an internal promotion or transfer that did not result in the hire, the AG noted (citing Op. Att'y Gen. 2014-127) that the public interest may be somewhat less and the privacy interest somewhat greater. Interview score sheets and similar evaluation-style documents from a failed promotion attempt sit in a different posture than a successful initial hiring application. But for the basic job application itself, the AG saw no obvious reason to change the analysis.

Common questions

Q: Can the public get my Arkansas state agency job application through FOIA?
A: Generally yes. Job applications of public employees are personnel records that are typically releasable, subject to redaction of specific personal information.

Q: What's redacted from a released application?
A: At minimum: home address, personal phone, personal email, Social Security number, medical info, school transcripts, date of birth, marital status, and information about dependents.

Q: Can I block release by objecting?
A: No. The test is objective, and your subjective preference about whether release would be an invasion of your privacy is not the standard.

Q: What if I applied internally for a promotion and didn't get it?
A: The AG flagged that interview score sheets and similar evaluation-style documents from unsuccessful promotion attempts may be treated differently. The basic application itself usually still falls under the same framework, but the score sheets and panel notes likely have stronger privacy interests.

Q: My application contains my college transcript. Will that be released?
A: No. School transcripts are among the specific items the AG identified as required redactions.

Q: What if I claim my application contains "intimate" details that should be private?
A: The custodian (and ultimately a court reviewing the custodian's decision) applies the Young v. Rice balancing test objectively. If the information is genuinely of a personal nature beyond standard application data, you can argue for redaction. The burden is on the person resisting disclosure.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015), definition of "public record"
• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exception
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), AG review of custodian decisions

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Ark. Sup. Ct.)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Ark. Sup. Ct.)

Treatise:

• John J. Watkins and Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed., 2009)

Prior AG opinions referenced:

• Op. Att'y Gen. 2015-130, 2014-127, 2010-070, 2009-032, 2007-064, 2007-008, 2006-165, 2006-176, 2005-004, 2004-260, 2003-336, 2003-153, 2001-368, 2001-112, 2001-080, 2001-022, 98-001, 94-198, 87-070

Source

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

Original opinion text

Opinion No. 2016-075
July 6, 2016

Delois Hare
c/o Gregory Ferguson, Legal Counsel
Department of Workforce Services
P. O. Box 8040
Little Rock, AR 72203

Dear Ms. Hare:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). This subsection authorizes the custodian, the 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 the documents constituting your application for employment with the Arkansas Department of Workforce Services (ADWS). The custodian of records for ADWS has decided that the requested records are not exempt from disclosure and that "to be in compliance with the Arkansas FOIA, these documents will be provided to the person requesting this information." You have asked for an opinion regarding ADWS's decision to release the requested documents.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I have not been provided with copies of the documents at issue and I therefore cannot opine specifically about the propriety of their release. I can state generally, however, that documents constituting an application for public employment are subject to public disclosure, provided that redaction of certain information may be necessary before release. Among the categories of exempt information to be redacted are personal contact information (including home address and personal phone number and email address), social security numbers, medical information, and school transcripts.

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, there must be no exceptions that require the document to be withheld.

The first two elements appear to be met in this case. As for the first element, the documents are held by ADWS, 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 a job application kept by ADWS clearly qualifies as a "public record" under this definition. Accordingly, a job application must be released unless some exemption applies to prohibit its release.

II. Exceptions to disclosure.

In my opinion, the exemption that is potentially relevant here 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 observed that job applications of public employees, and accompanying resumes, generally meet this definition.

Accordingly, such a job application generally 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 record against the individual's interest in keeping it 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 FOIA 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 any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. But because job applications of public employees rarely contain information the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, I can state generally that ADWS is likely not permitted to withhold your job application under the exemption for personnel records. 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.

It appears that you are an ADWS employee, and I take it that the job application at issue was successful in the sense that it led to your hiring by ADWS. I do not, however, have sufficient information to rule out the possibility that the job application at issue pertains to an unsuccessful attempt to gain a promotion or transfer to a different job within ADWS. If that possibility is fact, the analysis is slightly different with respect to certain personnel records. See, e.g., Op. Att'y Gen. 2014-127 (public interest may be somewhat less, and privacy interest somewhat greater, with respect to interview score sheets pertaining to a public employee's unsuccessful attempt to gain a promotion or transfer). It seems unlikely, however, that a job application would contain information of a type that would require different treatment depending on the public employee's success in gaining the promotion or transfer.

In conclusion, although I have not seen the documents constituting your application for employment with ADWS and therefore cannot opine specifically about their release, I can state generally that the custodian's decision to release records of this sort, after redacting social security numbers, school transcripts, and personal contact information, is consistent with the FOIA.

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).

Sincerely,

LESLIE RUTLEDGE
Attorney General