When a person's employment application at an Arkansas public agency is requested under FOIA, what gets released and what gets redacted?

Plain-English summary

Pamela Kirklin, an Arkansas School for the Blind employee, objected when the school's records custodian decided to release her redacted employment application in response to an FOIA request. AG Leslie Rutledge concluded the custodian's decision was largely consistent with the FOIA: an employment application of a public employee is a public record and is generally subject to disclosure unless its release would constitute a "clearly unwarranted invasion of personal privacy" under the personnel-records exemption in § 25-19-105(b)(12).

The AG identified one issue. The custodian had redacted the addresses of three personal references on page 7 of the application. The "personnel records" exemption does not protect that information because any privacy interest in third parties' contact information is de minimis. The addresses can be withheld only if those references are themselves public employees, in which case § 25-19-105(b)(13) protects personal contact information of public employees. The AG referenced Ops. Att'y Gen. 2015-008 and 2010-070 confirming that addresses and phone numbers of a job applicant's references are not exempt.

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.

Common questions

Q: Is a public employee's job application a public record? A: Yes. The AG cited Op. Att'y Gen. 87-070 and 2015-130 confirming that job applications are records of the performance of public officials' hiring functions, even though the application itself is from a private individual seeking the job.

Q: What's the "clearly unwarranted invasion of personal privacy" test? A: Young v. Rice, 308 Ark. 593 (1992), set up a two-step balancing test. First, is the information of a personal or intimate nature giving rise to a greater-than-de-minimis privacy interest? Second, does that privacy interest outweigh the public's interest in disclosure? The thumb is on the scale for disclosure.

Q: What specific items must always be redacted from a public employee personnel record? A: Personal contact info of public employees (telephone, email, home address); marital status and dependent info; dates of birth; Social Security numbers; medical info; identification of undercover law enforcement; driver's license numbers; insurance coverage; tax/withholding; payroll deductions; banking info.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)

Cases:

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

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 redacted job application, in response to a Freedom of Information Act ("FOIA") request, consistent with the FOIA? RESPONSE: In my opinion, the custodian's decision to release the application, as redacted, is for the most part consistent with the FOIA. I cannot definitively assess the custodian's decision to redact the addresses of your personal references from your job application. If these people were or are public employees, then their personal contact information is exempted from disclosure. Otherwise, there is no clear basis, in my opinion, for redacting this contact information.

Original opinion text

Opinion No. 2016-129
December 13, 2016
Pamela S. Kirklin
c/o Melinda Terry-Bonifas
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Fiscal Support/Human Resources Manager
Arkansas School for the Blind
2606 West Markham
Little Rock, AR 72205
Dear Ms. Kirklin:
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, 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 an FOIA request for your application for employment with the Arkansas School for the Blind and Visually Impaired (ASB). The custodian of records for ASB has determined that a redacted copy of your employment application will be provided to the person requesting this information. You object to the release of the application, though you have not provided a reason for your objection. 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 both the redaCted and the un-redacted employment application at issue, it is my opinion that the custodian's decision to release the application, as redacted, is for the most part consistent with the FOIA. I cannot definitively assess the custodian's decision to redact the addresses of your 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Pamela S. Kirklin c/o Melinda Terry-Bonifas Opinion No. 2016-129 Page 2 personal references from your job application. If these people were or are public employees, then their personal contact infonnation is exempted from disclosure. Otherwise, there is no clear basis, in my opinion, for redacting this contact information. 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, no exceptions allow the document to be withheld. The first two elements appear met in this case. As for the first element, the documents are held by ASB, which is a public entity. As for the second element, the FOIA defines "public record" as:
[W]ritings, 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.1 An employment application kept by ASB clearly qualifies as a "public record" under this definition.2 Accordingly, the application in question must be released unless some exemption applies to prohibit its release. 1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2015). 2 See Op. Att'y Gen. 2015-130 at n.2 (citing Op. Att'y Gen. 87-070, which found that applications are "a record of the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate."). Pamela S. Kirklin c/o Melinda Terry-Bonifas Opinion No. 2016-129 Page 3 I. Exceptions to disclosure In my opinion, the applicable exemption here is the one for "personnel records."3 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.4 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. 5 Accordingly, a job application generally must be released unless doing so constitutes a clearly unwarranted invasion of personal privacy.6 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 7 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. 8 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 minimis 3 Ark. Code Ann.§ 25-19-105(b)(l2): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 4 See, e.g., Op. Att'y Gen. 2007-008 (and opinions cited therein). See also John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT, 187 (Arkansas Law Press, 5th ed., 2009). 5 E.g., Ops. Att'y Gen. 2010-044, 2005-004, 2001-368; Watkins & Peltz at 185-87. 6 See note 4 supra. 7 308 Ark. 593, 826 S.W.2d 252 (1992). 8 Watkins & Peltz at 191. Pamela S. Kirklin c/o Melinda Terry-Bonifas Opinion No. 2016-129 Page 4 privacy interest.9 If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure.10 Because FOIA exceptions must be narrowly copstrued, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests.11 The mere 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.12 Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. Some items that must be redacted include:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 25-19-105(b)(13));
• Marital status of employees and information about dependents. (Op. Att'y Gen. 2001-080;
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-l 9-105(b )(1 O));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385); 9 Young, 308 Ark. at 598, 826 S.W.2d at 255. 10 Id. 11 Stilleyv. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 12 E.g., Ops. Att'y Gen. 2001-112, 2001-022, 94-198. Pamela S. Kirklin c/o Melinda Terry-Bonifas Opinion No. 2016-129 Page 5
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).
  II. Application.
  Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.13 With regard to job applications, however, this office has repeatedly indicated that the release of such records rarely rises to such a level. Having reviewed your employment application, it is my opinion that the custodian's decision to release it as redacted is, for the most part, consistent with the FOIA. I am unable to determine from the face of the records why the addresses of three individuals listed as your personal references have been redacted from page 7 of the application. If these people were or are public employees, then their personal contact information is exempted from disclosure.14 Otherwise, there is no clear basis, in my opinion, for redacting this contact information. These pieces of information are not exempt under Ark. Code Ann. § 25-19-105(b )( 12)-the "personnel records" exemption, supra note 3-because any privacy interest the employee might have in the information is de minimis. There is no other applicable statutory exemption. This office has previously opined that the addresses and telephone numbers of a job applicant's references when contained in a non-exempt public record are not exempt from disclosure.15 Sincerely,
  ~~~
  Attorney General
  13 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
  14 See Op. Att'y Gen. 2015-034 (citing Ark. Code Ann.§ 25-19-105(b)(l3)).
  15 See Ops. Att'y Gen. 2015-008 and 20 I 0-070.