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

Plain-English summary

John Kuykendall asked Attorney General Leslie Rutledge to review the Little Rock School District custodian's decision to release his job application and current employment contract. The custodian proposed redacting personal contact information, including a Social Security number, home addresses, personal telephone numbers, and personal email addresses.

Rutledge had not received the records, so she could not decide their specific release. She said public employees' applications and contracts are generally personnel records subject to disclosure. She concluded that releasing these types of records was consistent with FOIA if personal contact information and college transcripts were redacted. The transcript redaction was an additional requirement in the AG's answer, not part of the custodian's stated plan. She enclosed Opinion 2017-024 for the fuller legal analysis.

Currency note

This opinion was issued in 2017. Check current FOIA law and review the actual records before deciding a present request.

Common questions

Q: Did the custodian propose redacting college transcripts? A: The decision quoted in this opinion mentions only personal contact information. Rutledge added that college transcripts also had to be redacted before release.

Q: Did the AG approve release of the particular application and contract? A: She had not seen them and could not give a record-specific opinion. She said the custodian's decision to release these types of records was consistent with FOIA, subject to both categories of redaction.

Q: Why does the AG address applications and contracts together? A: She classified public employees' job applications and employment contracts as personnel records generally subject to disclosure under FOIA. She referred Kuykendall to the enclosed Opinion 2017-024 for a complete discussion of the legal test.

Background and statutory framework

The request invoked Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which allows review of a custodian's release decision for personnel or employee evaluation records. Rutledge limited her response because she lacked the records. The practical distinction in this opinion is between the custodian's proposed contact-information redactions and the AG's additional instruction to remove college transcripts.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
• Op. Att'y Gen. 2017-024 (enclosed)

Source

• Arkansas Attorney General opinions search: 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).