Can a Mountain View, Arkansas city clerk withhold employment applications, drug tests, and background checks under the FOIA?

Plain-English summary

A FOIA requester asked the City of Mountain View for 15 categories of records. City Clerk/Treasurer Peggy Lancaster wanted to withhold three categories: (1) completed employment applications of 8 employees, (2) pre-employment screens (physicals, drug tests, criminal background checks), and (3) post-employment drug tests. The employees objected to disclosure based on their "expectation the information would be secure," and the lifeguard applications included some applicants who were minors.

The AG concluded the City's blanket withholding was largely inconsistent with the FOIA. None of these document categories meets the definition of "employee evaluation or job performance records" under Thomas v. Hall. They are all personnel records. Personnel records are subject to the Young v. Rice balancing test, which tips toward disclosure. Subject objection is irrelevant under the objective test, and the FOIA does not distinguish between full-time and part-time positions, between adult and minor applicants for non-juvenile-court contexts, or between successful and unsuccessful applications (the AG noted prior opinions distinguish hired vs. not-hired applicants for classification purposes; hired applicants' applications are personnel records).

The AG flagged that drug tests and physicals might contain "medical information" subject to redaction under § 25-19-105(b)(2), and that pre-employment criminal background checks might contain ACIC-derived information that must be withheld under Ark. Code Ann. §§ 12-12-1108 to -1110.

Currency note

This opinion was issued in 2018. 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.

Document categories analyzed

Job applications. Generally personnel records. Public employees' completed job applications "rarely contain information the disclosure of which constitutes a clearly unwarranted invasion of personal privacy" (Op. Att'y Gen. 2016-118). The applicant's preference is irrelevant. Hired-applicant applications are personnel records (Ops. Att'y Gen. 2009-063, 2008-039, 2006-218, 2006-162, 95-244, 95-113); the AG flagged a separate framework for unsuccessful applicants but did not need to apply it here because the question concerned hired employees.

Lifeguard applications including minors. Same answer. The FOIA "does not distinguish between full-time and part-time job applications" (Op. Att'y Gen. 2011-132). The juvenile records exemption at § 9-27-309 covers juvenile-court records, not employment applications. So minor applicants' employment applications are not covered by any specific juvenile exemption.

Pre-employment drug tests and physicals. Generally personnel records (Ops. Att'y Gen. 2009-096 for drug tests, 2009-156 for physicals). The medical-records exemption under § 25-19-105(b)(2) applies if the documents qualify as "medical records" (records containing physician treatment or diagnosis). The AG could not say whether these specific drug tests and physicals met the medical-records definition without seeing them. Generally, "the FOIA, in my opinion, will generally require the release of a record reflecting whether a drug test was passed or failed" (Op. Att'y Gen. 2009-096), with possible redaction of the specific listed drugs depending on balancing.

Post-employment drug tests. Same framework as pre-employment. Personnel records subject to the Young v. Rice balancing test, with possible medical-records-exemption issues for specific medical content.

Pre-employment criminal background checks. Generally personnel records, releasable after redacting clearly unwarranted privacy items (Op. Att'y Gen. 2013-014). But Ark. Code Ann. §§ 12-12-1108 through 1110 create an ACIC exemption: criminal-history information held by or obtained from the Arkansas Crime Information Center may have to be withheld. The AG could not assess that without seeing the specific records.

Common questions

I'm a city clerk. Someone wants my employees' job applications. Can I withhold them?
Generally no, on the AG's analysis. Job applications of hired employees are personnel records, and the Young v. Rice balancing test heavily favors disclosure. Redact the items listed in standard mandatory-redaction lists (home address, SSN, DOB, marital status, dependents, etc.).

What if my employees object?
Subject objection is irrelevant. The privacy balancing test is objective.

What about applications from minors?
The juvenile exemption at § 9-27-309 covers juvenile-court records, not employment records. Minor applicants' employment applications are subject to the same FOIA framework as adult applicants.

What about drug tests and physicals?
Personnel records, not evaluation records. The medical-records exemption may apply to specific content. A record showing pass/fail of a drug test is generally releasable; the specific listed drugs may need balancing-test analysis.

What about background checks?
Mostly personnel records, releasable after standard redactions. But check whether any content came from ACIC: Ark. Code Ann. §§ 12-12-1108 to -1110 create a separate exemption for ACIC-derived criminal-history info that may require withholding.

Is there a difference between hired-applicant and not-hired-applicant applications?
Yes. AG opinions historically distinguish: hired applicants' applications are personnel records (subject to Young v. Rice); not-hired applicants' applications have a different framework. This case involved hired applicants only.

Background and statutory framework

Arkansas FOIA exempts two categories of employment records: personnel records (open unless clearly unwarranted privacy invasion) and employee-evaluation/job-performance records (closed unless all four prongs of § 25-19-105(c)(1) are met). Job applications, drug tests, physicals, and background checks are not "evaluation or job-performance records" under Thomas v. Hall because they are not created by the employer to evaluate the employee on the job. They are personnel records.

The opinion's most useful contribution is its framework for handling each category. For Mountain View specifically, the AG could not opine document-by-document because she had not seen the records, but she could opine category-by-category. The category-level analysis substantially undercuts the City's blanket-withholding position.

The medical-records exemption (§ 25-19-105(b)(2)) and the ACIC exemption (§§ 12-12-1108 to -1110) operate alongside the personnel-records framework. They can carve out specific content from an otherwise releasable record.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(2) (medical records exemption)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 12-12-1108 to -1110 (ACIC criminal-history exemption)
• Ark. Code Ann. § 9-27-309 (juvenile-court records)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

Opinion No. 2018-011
February 1, 2018
Peggy Lancaster
City Clerk/Treasurer
Mountain View City Hall
P.O. Box 360
Mountain View, AR 72560

Dear Ms. Lancaster:

You have asked for my opinion regarding documents sought under the Arkansas Freedom of Information Act ("FOIA"). Arkansas Code Annotated § 25-19-105(c)(3)(B)(i) (Supp. 2017) authorizes the custodian, requester, or subject of personnel or employee-evaluation records to seek an opinion from this office as to whether the custodian's decision regarding release of these records is consistent with the FOIA.

Documents forwarded to this office show that a FOIA request was made to the City of Mountain View for 15 categories of documents. Your correspondence indicates that you contacted current and former Mountain View employees regarding release of the documents. You question whether certain documents requested, employment applications, pre-employment screening (physicals, drug tests, criminal background checks, etc.), and post-employment drug tests, should be disclosed. In your opinion, these documents should be withheld. And you seek an opinion from this office as to whether your decision is consistent with the FOIA. My response will therefore be limited to a review of whether the FOIA requires disclosure of the documents you have specified.

RESPONSE

Under section 25-19-105(c)(3)(B)(i), my duty is to state whether the decision of the custodian (the City of Mountain View) is consistent with the FOIA. I have not seen the documents that you believe are responsive to the FOIA request. Therefore, I cannot opine regarding any document as a whole, or regarding any piece of information contained in a particular document. I can, however, opine regarding the categories of documents singled out for my review. And it is my opinion that the custodian has incorrectly identified the documents as exempt under the FOIA. Generally speaking, public employees' job applications and employment background checks are public records properly classified as personnel records. As personnel records, they are subject to disclosure except to the extent that disclosure would amount to a clearly unwarranted invasion of the employee's (or former employee's) personal privacy. Based on the description of these documents by category, I have no reason to believe a clearly unwarranted invasion of privacy would result. But again, I cannot answer this question definitively without reviewing the responsive documents.

DISCUSSION

II. Application.

I have not reviewed the documents at issue, and so cannot definitively opine on the custodian's decision to withhold them. But I can state based on the description of the documents by category that the decision to withhold is, generally speaking, inconsistent with the FOIA. This is because the document-categories in question fall within the definition of personnel records, and there are no clearly applicable exemptions that prevent the documents from being disclosed.

Employment applications.

Your first question is whether the "completed employment applications of 8 employees" should be released. It appears that seven of these individuals are currently full-time employees of the City, and that one is a former full-time employee. These individuals object to disclosure of their applications because they applied "with the expectation the information would be secure."

In my opinion, these completed applications should be disclosed under the FOIA. The job applications are properly classified as personnel records, which are subject to disclosure unless that disclosure would amount to a clearly unwarranted invasion of personal privacy. Not having reviewed the documents in question, I cannot say whether such an invasion of privacy is likely to result from disclosing these applications. However, the privacy balancing test is objective. That is, whether the individuals believe their applications should be "secure" is irrelevant. Given that the individuals' preference that the documents be withheld is the only basis stated for not releasing them, I believe the decision not to release is inconsistent with the FOIA.

Similarly, you question whether the employment applications submitted by lifeguards, who are seasonal employees, should be released. And you explain that some of the individuals who applied for the lifeguard position are minors. But as with the full-time employees' applications, in my opinion the lifeguard applications are personnel records and generally subject to disclosure. First, the FOIA does not distinguish between full-time and part-time job applications: both are personnel records. And as personnel records, they should generally be disclosed. Second, while the FOIA exempts certain information pertaining to minors (records filed in juvenile-court proceedings, for example), there is no exemption for employment applications filled out by a minor. Thus, as a general matter, I believe the lifeguard applications should be disclosed.

Pre-employment screens, post-employment drug tests, and criminal background checks.

You next question whether categories of documents such as criminal background checks, pre-employment drug tests, pre-employment physicals, and post-employment drug tests should be disclosed. You state that the physicals and drug tests (pre- and post-employment) are exempt as medical records from disclosure. As a result, you "don't think this information is open to the general public."

As a general matter, I believe these categories of documents are personnel records, the disclosure of which will depend upon the proper application of the test set out above. You correctly note that the FOIA exempts "medical records" from disclosure. While the statute does not define the term, this office has consistently opined that "medical records" are public records containing information relating to a physician's treatment or diagnosis of a medical condition. Because I have not seen the documents in question, I cannot definitively determine whether the drug tests and physicals qualify as medical records meeting this definition. But generally speaking, drug tests and physicals in the employment context are personnel records. The custodian must therefore apply the two-part balancing test protecting clearly unwarranted invasions of personal privacy to determine whether any information in the drug tests and physicals should be redacted or withheld.

Finally, you question whether pre-employment criminal background checks should be disclosed. Generally speaking, I believe the decision to withhold these documents is inconsistent with the FOIA. This office has consistently opined that when an applicant for public employment submits to a background check, and the applicant is hired, the report reflecting that background check qualifies as a personnel record. Thus, the background checks in question should be released after redacting any information that would constitute a clearly unwarranted invasion of personal privacy if disclosed. But please note that Ark. Code Ann. §§ 12-12-1108 through 1110 (Repl. 2016) may require the background check to be withheld, in whole or part. These statutes create exemptions to the FOIA for criminal-history information held by or obtained from the Arkansas Crime Information Center ("ACIC"). Without reviewing the documents in question, I cannot determine if the ACIC exemption shields from disclosure some or all of the information in the background checks.

In conclusion, because I have not reviewed the actual records at issue, I cannot definitively opine on whether the custodian's decision is consistent with the FOIA. But the custodian's decision to completely withhold the categories of documents discussed above is likely inconsistent with the FOIA, in my opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General