Can a Little Rock School District employee block release of her job application and contract under FOIA?

Plain-English summary

Little Rock School District employee Sonya Kindall asked whether the district should release her job application and current contract when the requester had already received her employment information once before. The custodian planned to release the records after redacting personal contact information. Attorney General Leslie Rutledge said she could not decide the particular release because she had not seen the records. She also expressly declined to answer the repeat-request question.

Rutledge gave general guidance: public school employee job applications and contracts are public records and ordinarily qualify as personnel records. Their release is governed by the FOIA privacy test, and exempt details must be redacted. She said release of these types of records after redacting personal contact information and college transcripts was generally consistent with FOIA. The custodian's stated plan mentioned personal contact information; the transcript redaction was part of the AG's guidance.

Currency note

This opinion was issued in 2017. Check current FOIA law and the actual records before applying it to a current request.

Common questions

Q: Did the AG order the district to release Kindall's records again? A: No. Rutledge had not reviewed the records and declined to address Kindall's point that the requester had previously received the information. She gave general guidance about applications, contracts, and redactions.

Q: Are job applications and employment contracts public records? A: Rutledge said applications and contracts held by the public school district clearly qualified as public records. She generally classified them as personnel records, subject to the applicable privacy test and any required redactions.

Q: What redactions did the opinion identify?
A: The custodian proposed removing personal contact information, including Social Security numbers, home addresses, personal telephone numbers, and personal email addresses. Rutledge also identified college transcripts among information that should be removed before release of these kinds of records.

Q: Why could the AG not decide the particular disclosure? A: She had not been given copies of the requested records. Whether specific content would constitute a clearly unwarranted invasion of personal privacy requires review of the actual information and surrounding facts.

Background and statutory framework

The FOIA treats records kept by a public school district as public records unless an exemption applies. For personnel records, the opinion describes the Young v. Rice balance between public access and a greater than minimal privacy interest, with a presumption favoring disclosure. Some discrete details require redaction even when the rest of a record is released.

Rutledge limited her review to whether the custodian applied the FOIA test for personnel or employee evaluation records. In a footnote she said that this review did not extend to Kindall's question about a previous FOIA request. Her opinion therefore provides no repeat-request rule.

Citations

• Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), 25-19-105(b)(13)
• Young v. Rice, 308 Ark. 593 (1992)

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Is the decision of the custodian of records for the Little Rock School District to provide an employee's redacted job application and contract, in response to a Freedom of Information Act (FOIA) request, consistent with the FOIA? RESPONSE: I have not seen the requested records and therefore cannot opine specifically about their release. I can state generally, however, that the custodian's decision to release these types of records--after redacting personal contact information and college transcript--is consistent with the FOIA.

Original opinion text

Opinion No. 2017-023
February 28, 2017
Sonya Kindall
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Rhonda L. Benton, SPHR, SHRM-SCP, CLRP
Director, Human Resources
Little Rock School District
810 West Markham Street
Little Rock, AR 72201
Dear Ms. Kindall:
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 the Little Rock School District ("LRSD") has received a FOIA request for, among other things, a redacted copy of your job application and employment contract. The records custodian has determined that "your job applica[tion] and current contract should be disclosed" after redacting "all personal contact information, including but not limited to: [S]ocial [S]ecurity number, home addresses, personal telephone numbers and personal email addresses, as required by law." You state that the requester in this instance was previously provided with your employment information, and you have asked for my opinion "as to whether the information should be provided a second time." RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. My duty is limited to determining whether the custodian has properly applied the test under the FOIA for the release of "personnel" and "employee 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Sonya Kindall Opinion No. 2017-023 Page 2 evaluation" records.1 I have not been provided with copies of the requested records, and thus cannot conclusively opine regarding any particular record. I can state generally, however, that the job applications and employment contracts of public employees are "personnel records" for purposes of the FOIA and subject to public disclosure, provided that certain personal contact information must be redacted prior to release. 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 the LRSD, 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.2 I believe job applications and employment contracts kept by the LRSD clearly qualify as "public records" under this definition.3 Therefore, in my opinion, these 1 My review does not extend to answering particular questions concerning citizens' requests under the FOIA. I therefore cannot address your statement that the requester in this instance was provided information after making a previous FOIA request. 2 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015). 3 See Ops. 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"); and 93-337 at 1 Sonya Kindall Opinion No. 2017-023 Page 3 documents are public records and must be disclosed unless some specific exception provides otherwise. II. Exceptions to disclosure. Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files.4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive wroups: "personnel records"5 or "employee evaluation or job performance records." When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed. In my opinion, the exemption that is primarily relevant in addressing the requested data at issue is the "unwarranted invasion of personal privacy" exemption found in the FOIA at Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2015). This provision exempts from public disclosure "[personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Also (stating that "contracts of public school employees are clearly 'public records' within the meaning of the FOIA."). 4 This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009). 5 Ark. Code Ann.§ 25-19-105(b)(12): "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." 6 Ark. Code Ann. § 25-19-lOS(c)(l): "Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure." Sonya Kindall Opinion No. 2017-023 Page 4 relevant to the request is Ark. Code Ann. § 25-19-501(b)(13) (Supp. 2015) (exemption for "personal contact information ... contained in employer records"). a. Personnel-records exception. The FOIA does not define the exception for "personnel records." But this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees.7 Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."8 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice,9 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.10 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 privacy interest. 11 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.12 Because the exceptions must be narrowly construed, the 7 See, e.g., Op. Att'y Gen. 1999-147; Watkins & Peltz at 187. 8 Ark. Code Ann.§ 25-19-105(b)(12) (Supp. 2015). 9 308 Ark. 593, 826 S.W.2d 252 (1992). 10 Watkins & Peltz, supra note 4, at 191. 11 Young, 308 Ark. at 598, 826 S.W.2d at 255. 12 Id., 826 S.W.2d at 255. Sonya Kindall Opinion No. 2017-023 Page 5 person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests.13 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.14 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.15 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.§ 25-19-105(b)(10));
• 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);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).
  13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 14 E.g., Ops. Att'y Gen. 2001-112, 2001-022, 94-198. 15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Sonya Kindall Opinion No. 2017-023 Page 6 III. Application. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.16 This office has previously opined, however, that the type of information contained in teacher contracts and job applications rarely rises to the level of a clearly unwarranted invasion of personal privacy.17 Nonetheless, certain information may need to be redacted from the requested records. Among the categories of exempt information to be deleted are Social Security numbers, medical information, school transcripts, and personal contact information.18 In conclusion, although I have not seen the requested records and therefore cannot opine specifically about their release, I can state generally that the custodian's decision to release these types of records-after redacting personal contact information and college transcripts-is consistent with the FOIA. Sincerely,
  ~-"·/~.,,
  LESLIE RUTLEDGE
  Attorney General
  16 Ops. Att'y Gen. 2016-025, 2006-176, 2004-260, 2003-336, and 98-001. 17 See Ops. Att'y Gen. 2016-025, 2010-070, 2009-032, 2003-385 and 88-147. 18 Id. (and opinions and Arkansas Code sections cited therein).