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

Plain-English summary

The Little Rock School District received a FOIA request that included the redacted job application and current employment contract of LRSD employee John Kuykendall. The custodian planned to release the records with standard redactions for personal contact information and college transcripts. Kuykendall asked the AG to review the decision.

Attorney General Leslie Rutledge confirmed that the custodian's plan was consistent with the Arkansas FOIA. Job applications and employment contracts of public school employees are personnel records subject to disclosure. The two categories of redaction (personal contact information under § 25-19-105(b)(13), and college transcripts under the Young v. Rice personnel-records balancing test) were proper.

This is the third in a same-week cluster of essentially identical AG reviews for LRSD employees: Op. 2017-023 (Sonya Kindall), Op. 2017-024 (Shirley Goodnight), and this opinion 2017-025 (John Kuykendall). All three reach the same conclusion using the same legal framework. Reading them together provides a clean snapshot of how the AG handled routine FOIA review during this period.

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: Why does the same week produce three nearly identical opinions?
A: A single FOIA request often covers multiple employees. Each affected employee can independently request AG review under § 25-19-105(c)(3)(B)(i). The AG issues a separate opinion per request. The same week, three LRSD employees asked the AG to look at the disclosure decision for their respective records.

Q: What is the practical takeaway for LRSD?
A: The custodian's redaction approach was correct: redact personal contact information (Social Security numbers, home addresses, personal phone numbers, personal email addresses) and college transcripts. Beyond that, the records are disclosable.

Q: What happens to recommendations and reference letters in the application file?
A: Other AG opinions treat recommendation letters as personnel records subject to the Young v. Rice balancing test. They are not automatically exempt. Whether a particular letter must be released depends on its content and the privacy interests at stake. Where the letter contains generic praise or factual descriptions of work history, release is likely. Where it contains personal or intimate detail, redaction is more likely.

Q: Are these opinions binding on courts?
A: No, AG opinions are persuasive but not binding. A court reviewing a FOIA suit could disagree. But AG opinions are routinely cited and followed by courts and custodians, and the Arkansas Supreme Court has explicitly aligned its FOIA framework with the AG office's longstanding interpretations.

Background and statutory framework

The same-week cluster of LRSD opinions illustrates how the AG-review process works for routine FOIA disputes. Each requesting employee gets a separate review and a separate opinion, but the substantive outcomes are uniform when the records are similar. The cluster also demonstrates that the AG's role is largely confirmatory: she usually agrees with custodian decisions when the framework is properly applied, and her opinions function more as a stamp of approval than as a check on disclosure.

For employees concerned about FOIA disclosure of their personnel records, the lesson is that AG review will not prevent disclosure where the records are otherwise releasable. The protection runs through the redaction list, not through wholesale withholding.

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. 2017-023 (Kindall, parallel)
• Op. Att'y Gen. 2017-024 (Goodnight, parallel)

Source

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

Original opinion text

Opinion No. 2017-025
March I, 2017
John Kuykendall
STATE OF ARKAN SAS
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 7220 I
Dear Mr. Kuykendall:
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.
RESPONSE
The scope of my authority under the FOIA is limited to evaluating the propriety of
the custodian's decision with respect to the release of personnel records and
employee evaluation records. 1 You have not indicated which specific FOIA
request has prompted your request for my opinion, but it is my understanding that
your correspondence refers to a request for your redacted job application and
employment contract. In this instance, 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."
1 See Ark. Code Ann.§ 25-19-105(c)(3)(B)(i).
323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV John Kuykendall
Opinion No. 2017-025
Page2
RESPONSE
My statutory duty is to state whether the decision of the custodian of records is
consistent with the FOIA. In this regard, please find the enclosed, recently issued
Attorney General Opinion No. 2017-024, which addresses the custodian's decision
regarding the same FOIA request for employees' job applications and employment
contracts. As I stated therein, I cannot opine specifically because I do not have the
requested records. As I also stated, however, the job applications and employment
contracts of public employees are "personnel records" and are generally subject to
disclosure under the FOIA, provided that certain personal contact information
must be redacted prior to the records' release.
It is therefore my opinion that the custodian's decision to release the types of
records that have been requested in this instance is consistent with the FOIA,
although it is necessary to redact personal contact information and college
transcripts before the records are released. I will not repeat the legal analysis, but
instead refer you to the enclosed opinion for the complete review.
Sincerely,
~-~· /~7
LESLIE RUTLEDGE
Attorney General
Enclosure Opinion No. 2017-024
February 28, 2017
Shirley Goodnight
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Rhonda L. Benton, SPHR, SHRM-SCP, CLRP
Director of Human Resources
Little Rock School District
810 West Markham Street
Little Rock, AR 72201
Dear Ms. Goodnight
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 ask whether the custodian's decision to
release these records is consistent with the FOIA.
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 requested records, and thus
cannot conclusively opine regarding the release of any particular records. I can
323 CENTER STREET, SUITE 200 • LITTLE ROCK, AR.KANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682,8084
ARKANSASAG.GOV Shirley Goodnight
Opinion No. 2017-024
Page2
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 disclo1mre, 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. 1
I believe job applications and employment contracts kept by the LRSD clearly
qualify as "public records" under this deflnition.2 Therefore, in my opinion, these
documents are public records and must be disclosed unless some specific
exception provides otherwise.
1 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015).
i See Ops. Att'y Gen. 2015-130 at n.2 (citing Op. Att'y Gen, 87-070, which found that applications are 1'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 pg. 1 (stating that "contracts of public school
employees are clearly 'public records' within the meaning of the FOIA."). Shirley Goodnight
Opinion No. 2017-024
Page 3
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files.3 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive youps: "personnel records"4 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
records at issue is the "unwarranted invasion of personal privacy" exemption
found in the FOIA at Ark. Code Ann. § 25-19-10S(b)(l2) (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 relevant to the request is Ark. Code Ann. § 25-19-501(b)(13) (Supp. 2015)
(exemption for "personal contact information ... contained in employer records").
3 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 fonns; perfonnance 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, Sth ed., 2009).
4 Ark. Code Ann.§ 25-19-l05(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."
' Ark. Code Ann. § 25-19-lOS(cXl): "Notwithstanding subdivision (b)(l2) 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." Shirley Goodnight
Opinion No. 2017-024
Page 4
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. 6 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."7
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,8 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. 9
The balancing test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in th.e requested document is of a
personal or intimate nature such that it gives rise to a greater than de minimis
privacy interest.10 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.11 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.12 The fact that
6 See, e.g., Op. Att'y Gen. 1999-147; Watkins & Peltz at 187.
7 Ark. Code Ann.§ 25-19-105(b)(12) (Supp. 2015).
8 308 Ark. 593, 826 S.W.2d 252 (1992).
9 Watkins & Peltz, supra note 3, at 191.
10 Young, 308 Ark. at 598, 826 S.W.2d at 255.
11 Id., 826 S.W.2d at 255.
12 Stilley v. McBride, 332 Ark, 306, 313, 965 S.W.2d 125, 128 (1998). Shirley Goodnight
Opinion No. 2017-024
Page S
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. 13
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.14
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.
CodeAnn. § 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. Atey 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)(l0));
• 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); and
• Payroll deductions (Op. Att'y Gen. 98-126);
• Banking information (Op. Att'y Gen. 2005-194).
13 E.g., Ops. Att'y Gen. 2001-112, 2001-022, 94-198.
14 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Shirley Goodnight
Opinion No. 2017-024
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.15 This
office has previously opined, however, that the type of information contained in
teacher contracts and job applications rarely rises to the level of an "unwarranted
invasion of personal privacy.16 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 infonnation.17
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
11 Ops. Att'y Gen. 2016-025, 2006-176, 2004-260, 2003-3361 and 98-001.
16 See Ops. Att'y Gen. 2016-025, 2010-070, 2009-032, 2003-385 and 88-147.
17 Id. (and opinions and Arkansas Code sections cited therein).