Can a school district release a public employee's job application under Arkansas FOIA after redacting personal contact info?

Plain-English summary

Someone requested Amy Pierce's online job application from Little Rock School District. The district's records custodian planned to release a copy with personal contact information and her Social Security number removed. Pierce asked the Arkansas Attorney General to review that decision.

The AG examined both the redacted and unredacted application and concluded that releasing the redacted copy was consistent with Arkansas FOIA. A job application kept by a public school district is a public record and is generally treated as a personnel record. Such records are open unless disclosure would be a clearly unwarranted invasion of personal privacy. Exempt details within an otherwise releasable application may need to be removed.

The opinion mentions college grade transcripts only to say that, if kept in a public employer's files, they are evaluated under the personnel-records exception. It does not say Pierce's application contained grades, that grades were redacted, or that academic grades are categorically private.

Currency note

This opinion was issued in 2017 and concerns the specific application the AG reviewed. A current custodian should inspect the actual records and current Arkansas FOIA provisions before deciding what to release.

Background and statutory framework

The AG applied three threshold questions: whether the request went to an entity covered by FOIA, whether the document was a public record, and whether an exception allowed it to be withheld. Little Rock School District is a public entity, and the application it kept was a public record.

For this application, the relevant exception was for personnel records under Ark. Code Ann. § 25-19-105(b)(12). The AG said public-employee job applications and accompanying résumés generally fit that category. Disclosure is required unless it would be a clearly unwarranted invasion of personal privacy.

Under Young v. Rice, the custodian first asks whether the information carries more than a minimal privacy interest. If it does, the custodian weighs that interest against the public interest in access, with the scale favoring disclosure. The person resisting release bears the burden. The subject's personal objection does not by itself decide the objective privacy test.

Redactions and the AG's decision

The custodian told the AG she would remove personal contact information, including home addresses, personal telephone numbers and personal email addresses, as well as the Social Security number. The opinion lists other categories that might require redaction in an otherwise disclosable record, such as medical, tax, banking and insurance information. That general list is guidance; it does not establish that each item appeared in Pierce's application.

After reviewing both versions, the AG approved releasing this application as redacted. She did not identify individual transcript grades as part of the redaction decision.

Common questions

Are public-employee job applications automatically confidential?

No. The AG said they generally qualify as personnel records and must be released unless disclosure would be a clearly unwarranted invasion of personal privacy. Specific exempt details may be redacted.

Did the AG review the actual application in this case?

Yes. She said she reviewed both the redacted and unredacted versions before finding the custodian's release decision consistent with FOIA.

Did the opinion order transcript grades removed?

No. It says college grade transcripts kept by a public employer are analyzed as personnel records. It does not report grades in this application or a grade-specific redaction.

Does an employee's objection stop release?

No. The opinion says the privacy test is objective. The custodian must apply the statutory balancing test to the information in the record.

Source

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

Original opinion text

STATE O F ARKAN SAS
ATTO RN EY G EN ERAL
LESLI E RUT LE DGE

Opinion No. 2017-121

November 14, 2017

l'v1rs. Amy Pierce
c/o Rhonda Benton, SPHR, SHRl\1-SCP, CLRP
Director of Human Resources
Little Rock School District
810 West Markham Street
Little Rock, AR 72201

Dear l'v1rs. Pierce:

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 a request to the Little Rock School District (LRSD) for a copy of your online job application. The records custodian has determined that your online application 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 have requested Attorney General review of the custodian's decision, pursuant to Ark. Code Ann. § 25-19- 105( c)(3 )(B)(i).

RESPONSE

l'v1y 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 consistent with the FOIA.

323 CENTER STllEET. SU ITE 200 · LITT LE ROC K. ARKAN SAS 7220 I TELEP H ONE (501) 682-2007 · FAX (50l) 682-8084 ARKAN SAS AG. GOV

l!Irs. A.1ny Pierce
c/o Rhonda Benton, Director
LRSD Hu1nan Resources
Opinion No. 2017-121
Page 2

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

An employment application kept by the LRSD 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.

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

1
A.rk. Code A.nn. § 25-19-103(7)(A.) (Supp. 2015).
2
See Op. A.tt'y Gen. 2016-129 (and opinions cited therein).
3
This office and the leading co1n1nentators on the FOIA. have observed that personnel files usually include: e1nploy1nent applications; school transcripts; payroll-related docu1nents such as infor1nation about reclassifications, pro1notions, or de1notions; transfer records; health and life

l\1rs. AtnyPierce
c/o Rhonda Benton, Director
LRSD Hutnan Resources
Opinion No. 2017-121
Page 3

be divided into two mutually exclusive groups: "personnel records" 4 or "employee evaluation or job performance records." 5 The test for whether these two types of documents may be released differs significantly.

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 one for "personnel records. " 6

The FOIA does not define the term "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 And this office and the two leading commentators on the FOIA have repeatedly observed that job applications of public employees, and accompanying resumes,

insurance fortns; perfortnance evaluations; recotntnendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal docutnents such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz- Steele, & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT, 205-06 (Arkansas Law Press, 6th ed., 2017).

4
Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2015): "It is the specific intent of this section that the following shall not be deetned to be tnade 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." 5 Ark. Code Ann. § 25-19-lOS(c)(l) (Supp. 2015): "Notwithstanding subdivision (b)(12) of this section, all etnployee evaluation or job perfortnance records, including prelitninary notes and other tnaterials, shall be open to public inspection only upon final adtninistrative resolution of any suspension or tertnination proceeding at which the records fortn a basis for the decision to suspend or tertninate the etnployee and if there is a cotnpelling public interest in their disclosure." 6 See note 4 supra.
7
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).

l'vlrs. A.111yPierce
c/o Rhonda Benton, Director
LRSD Hu111an Resources
Opinion No. 2017-121
Page 4

generally meet this definition. 8 Accordingly, a job application generally must be released unless doing so constitutes a clearly unwarranted invasion of personal privacy. 9 A public employee's college grade transcripts kept in the employer's files are also evaluated under the personnel records exemption. 10

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 11 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. 12

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. 13 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. 14 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. 15 The fact that the subject of any such records may consider release of the records an unwarranted

8
E.g., Ops. A.tt'y Gen. 2010-044, 2005-004, 2001-368; Watkins & Peltz at 185-87.
9
See note 4 supra.
10
See Watkins, Peltz-Steele & Steinbuch, note 3 supra, at 125.

11
308 A.rk. 593, 826 S.W.2d 252 (1992).
12
Watkins & Peltz, supra note 3, at 191.
13
Young, 308 A.rk. at 598, 826 S.W.2d at 255.
14
Id., 826 S.W.2d at 255.
15
Stilley v. McBride, 332 A.rk. 306, 313, 965 S.W.2d 125, 128 (1998).

l\1rs. A.tnyPierce
c/o Rhonda Benton, Director
LRSD Hutnan Resources
Opinion No. 2017-121
Page 5

invasion of personal privacy 1s irrelevant to the analysis because the test 1s objective. 16

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)(l3));

• 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); and • Payroll deductions (Op. Att'y Gen. 98-126);
• Banking information (Op. Att'y Gen. 2005-194).

III. Application.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 11 But in the case of job applications, this office has repeatedly indicated that the release of

16
E.g., Ops. A.tt'y Gen. 2001-112, 2001-022, 94-198.
17
Ops. A.tt'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Ivlrs. J\1nyPierce
c/o Rhonda Benton, Director
LRSD Hu1nan Resources
Opinion No. 2017-121
Page 6

public employee's personal contact information is exempt from disclosure pursuant to Ark. Code Ann. § 25-19-501(b)(13) (exempting "personal contact information ... contained in employer records.").

Having reviewed your employment application under these standards, it is my opinion that the custodian's decision to release it-as redacted-is consistent with the FOIA.

Sincerely,

~~-~·/~7
LESLIE RUTLEDGE
Attorney General

17
Ops. J\tt'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
18
See Op. Att'y Gen. 2017-023 (and opinions cited therein).
19
See Ops. Att'y Gen. 2014-109, 2003-231.