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

Plain-English summary

The Little Rock School District received a FOIA request for the redacted job application and employment contract of LRSD employee Sonya Kindall. The custodian planned to release the records 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." Kindall asked the AG whether the records had to be provided again (the requester had already received the same information once before).

Attorney General Leslie Rutledge:

• Confirmed that job applications and employment contracts of public school employees are "public records" under § 25-19-103(7)(A) and "personnel records" under § 25-19-105(b)(12). They are presumptively subject to disclosure.
• Confirmed that the custodian's planned redactions were proper. Personal contact information must be redacted under § 25-19-105(b)(13). College transcripts (which often appear in job application files) should also be redacted as a personnel-records detail that exceeds the de minimis privacy threshold under Young v. Rice.
• Declined to address whether previous disclosure to the same requester affected the duty to disclose again. The AG's review under § 25-19-105(c)(3)(B)(i) is limited to whether the custodian properly applied the FOIA test, not to broader questions about repeat requests.

The functional answer: yes, the records had to be released again with the redactions. The FOIA does not have a "we already gave you this once" exception. Each request is reviewed on its own.

This opinion is one of three nearly identical AG reviews issued the same week for LRSD employees (Op. 2017-023, 2017-024, 2017-025), all reaching the same conclusion.

Currency note

This opinion was issued in 2017. 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: Are public school employee job applications really public records?
A: Yes. Earlier AG opinions (Op. Att'y Gen. 87-070, cited in Op. 2015-130) treated applications as "a record of the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate." Employment contracts are even clearer (Op. 93-337 confirmed contracts of public school employees are "clearly 'public records'").

Q: What gets redacted from a job application before release?
A: Per this opinion: Social Security numbers, home addresses, personal telephone numbers, personal email addresses, and college transcripts. Other AG opinions add: dates of birth, marital status and dependents, medical information, driver's license numbers, insurance information, payroll deductions, and banking details.

Q: Why are college transcripts redacted but not the fact of degree?
A: Transcripts contain individual course grades, which the AG and Young v. Rice balancing have treated as more than de minimis privacy. The fact that a candidate holds a particular degree from a particular institution is generally on the application or résumé and is generally disclosable.

Q: Does it matter that the requester previously got the same information?
A: Not for the FOIA analysis the AG conducts. Each FOIA request is reviewed independently, and the same records are equally available on a repeat request. Whether a record has been previously disclosed to the same person is not an exemption.

Background and statutory framework

The Arkansas FOIA's personnel-records framework treats most workforce records of public agencies as disclosable, with redactions for the categories specified by statute and AG opinion. Job applications and employment contracts are fairly far down the sensitivity scale: the public has a strong interest in knowing who works for it and on what terms, while individual privacy interests in things like contact information and academic records are protected through redaction rather than withholding.

This opinion is part of a recurring AG-review pattern: a school district receives a FOIA request, processes the records, redacts what statute and AG opinion require, and asks the AG to bless the redaction set.

Citations

• Ark. Code Ann. § 25-19-103(7)(A)
• Ark. Code Ann. § 25-19-105(b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593 (1992)
• Op. Att'y Gen. 87-070 (job applications as public records)
• Op. Att'y Gen. 93-337 (school employee contracts)

Source

• Landing page: 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).