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

Plain-English summary

Mountain View City Clerk/Treasurer Peggy Lancaster proposed withholding completed job applications, pre-employment screens and post-employment drug tests requested under the Arkansas FOIA. The Attorney General said blanket withholding of those categories was likely inconsistent with the law. She had not seen the documents, so she could not make a final decision about any particular page or redaction.

The AG generally classified the described records as personnel records, which require an objective privacy analysis before release. Employees' expectation that their applications would remain private did not itself justify withholding. Applications for seasonal lifeguard positions were generally disclosable as well; the opinion said the FOIA had no special exemption for an employment application filled out by a minor.

The AG gave two important qualifications. A drug test or physical could contain material qualifying as an exempt medical record, depending on its contents. A criminal background check could contain information from the Arkansas Crime Information Center that other statutes protect. The custodian needed to examine the actual documents to apply those rules.

Currency note

This February 2018 opinion discusses categories of records without examining the requested documents. Check current FOIA and ACIC provisions and each document's contents before deciding disclosure now.

Background and statutory framework

Personnel records are subject to disclosure unless release would be a clearly unwarranted invasion of personal privacy. The AG said completed applications of the eight named employees should be disclosed on the facts supplied, because the only stated reason for withholding was the employees' expectation of privacy. She could not rule out a privacy concern within an unseen application.

For pre-employment physicals and pre- or post-employment drug tests, the AG described the records generally as personnel records. She said a medical record involves physician treatment or diagnosis and could be exempt, but she could not determine whether these tests and physicals met that definition without reading them. A footnote quoted an earlier AG opinion saying a pass/fail drug-test result generally should be released, while the privacy analysis for the actual listed drugs may differ. The AG said that reasoning applied here.

For background checks, the AG addressed reports about applicants who were hired. Those reports are generally personnel records requiring privacy redactions. She warned that Ark. Code Ann. §§ 12-12-1108 through 1110 may shield ACIC criminal-history information in whole or in part. She did not describe a separate rule for applicants who were not hired.

Common questions

Can the city withhold all eight completed employee applications because applicants expected privacy?

The AG said no on that stated basis. The privacy test is objective, and the clerk had not identified a specific privacy problem in a particular document.

Are minor lifeguards' applications automatically exempt?

No. The opinion says the FOIA does not distinguish full-time from part-time applications and contains no general exemption for an employment application completed by a minor.

Are drug-test results always public?

The opinion's footnote quotes earlier guidance that a pass/fail record generally should be released. It also says the actual listed drugs may require a separate privacy balance, and the AG had not seen these records or determined whether any qualified as medical records.

What must be checked in a criminal background report?

The custodian should apply the personnel-record privacy test and determine whether any information came from ACIC. The AG said the ACIC statutes might protect some or all of a report, depending on its contents.

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTO RN EY G EN ERAL
LE SLI E RUTL EDGE

Opinion No. 2018-011

February 1, 2018

Peggy Lancaster
City Clerk/Treasurer
Mountain View City Hall
P. 0. 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-l 9- 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.

323 CENTE I ~ STR EE T. SU ITE 200 · L ITT LE ROC K, AR KA N SAS 72201 TEL EPH O N E (50 1) 682-200 7 · FAX (5 01 ) 682-8084 AR KA N SASAG .GOV

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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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. 1 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

I. General standards governing disclosure.

A document must be disclosed under the FOIA if (1) the request was directed to an entity subject to the FOIA; (2) the requested documents are public records; and (3) the requested documents are not exempt from disclosure. All three of these conditions must be satisfied for disclosure to take place.

The first two elements seem to be met. The request was made to the City of Mountain View, which is a public entity subject to the FOIA. And the request appears to pertain to public records. The FOIA defines public records as "writings, 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 ... carried out by a public official or employee 2
•••• " There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 3

1
This office has historically distinguished between job applications of successful and unsuccessful applicants. If the applicant was hired, then the application is considered a personnel record. E.g. Ops. Att'y Gen. 2009-063, 2008-039, 2006-218, 2006-162, 95-244, 95-113. 2 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
3
See Op. Att'y Gen. 2010-044.

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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Here, the City of Mountain View appears to have classified as public records all of the documents requested. Moreover, the custodian appears to have classified the categories of documents singled out for my review-employment applications, background checks, and post-employment drug tests-as public records. I will therefore proceed as though these documents are public records that must be disclosed, unless an exemption provides otherwise.
a. Relevant exemptions under the FOIA.

The FOIA exempts two types of records normally found in employees' personnel files: "personnel records" 4 and "employee evaluation or job performance records. " 5 The custodian is responsible for classifying documents from a personnel file 6 as either personnel records or employee-evaluation records. Then, the custodian must apply the appropriate exemption test to determine whether the FOIA requires that the records be disclosed.
b. Personnel records.

The FOIA does not define "personnel record." But this office has consistently opined that personnel records are all records, other than employee-evaluation records, that pertain to individual employees. 7 Whether a particular record meets this definition is a question of fact that can only be determined by reviewing the record itself. Documents properly classified as personnel records should be disclosed under the FOIA, except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. " 8

4
See Ark. Code Ann. § 25-19-105(b)(12).
5
See Ark. Code Ann. § 25-19-105( c)( 1).
6
This office and the leading commentators on the FOIA have observed that personnel files usually include documents such as 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-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
8
Ark. Code Ann.§ 25-19-105(b)(12).

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy." However, the Arkansas Supreme Court has established a balancing test to determine whether release of a personnel record would violate this standard. In Young v. Rice, 9 the Court balanced the public's interest in accessing personnel records against the subject of the record's interest in keeping them fcrivate. This balancing test takes place with the scale tipped in favor of disclosure. 0

The test involves two steps. First, the custodian must assess whether the information contained in the personnel record is of a personal or intimate nature, such that it gives rise to a greater than de minimis privacy interest for the subject. 11 If the interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest, and the record must be disclosed.

If the information gives rise to a greater than de minimis privacy interest, then the custodian must next determine whether that interest is outweighed by the public's interest in disclosure. 12 Whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 13 However, because the balancing test is objective, whether the subject of the records considers their release an unwarranted invasion of personal privacy is irrelevant to the analysis. 14 Exemptions under the FOIA are narrowly construed, so the subject has the burden of showin? that under the circumstances, his privacy interests outweigh the public's interests. 5

A personnel record, as a whole, may meet the two-part balancing test. But the record may nevertheless contain discrete information that would constitute a clearly unwarranted invasion of personal privacy if disclosed. The following are examples of such information, which must be redacted:

9
308 Ark. 593, 826 S.W.2d 252 (1992).
10
Watkins, et al., at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
12
Id., 826 S.W.2d at 255.
13
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
15
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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• 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));

• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• 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).
  c. Employee-evaluation records.

The FOIA does not define "employee evaluation or job performance records." But the Arkansas Supreme Court has adopted this office's view that the term refers to any records ( 1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job. 16 Documents properly classified as emplof'ee-evaluation records are generally exempt from disclosure under the FOIA. 1 However, none of the document-categories singled out for my review appear to meet the definition of employment-evaluation records. I will therefore focus on whether the documents, all of which appear to be personnel records, are exempt from disclosure under the Young v. Rice balancing test.

16
See Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008- 004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055. 17 See Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 96-168; Watkins, et al., at 223.

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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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.

You 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, 18 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. 19 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

18
See note 1.
19
See note 13.

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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are personnel records. 20 And as personnel records, they should generally be 21 disclosed. Second, while the FOIA exempts certain information pertaining to minors-records filed in juvenile-court proceedings, for example 22-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. 23 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. 24 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 25 and physicals 26 in the employment context are personnel records. The custodian must

20
See Op. Att'y Gen. 2011-132 ("There is no general FOIA exemption for the personnel records of part-time employees."). 21 See Op. Att'y Gen. 2016-118 (noting that ''job applications of public employees rarely contain information the disclosure of which constitutes a clearly unwarranted invasion of personal privacy."). 22 See, e.g., Ark. Code Ann.§ 9-27-309 (Supp. 2017).
23
Ark. Code Ann. § 25-19-105(b )(2).
24
See, e.g., Op. Att'y Gen. 2012-145.
25
See Op. Att'y Gen. 2009-096.
26
Op. Att'y Gen. 2009-156 ("The physical fitness results are probably best characterized as personnel records.").

Peggy Lancaster, City Clerk/Treasurer
Opinion No. 2018-011
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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. 27

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. 28 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.

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,

~T~
Attorney General

27
See again Op. Att'y Gen . 2009-096 ("[T]he FOIA, in my opinion, will generally require the release of a record reflecting whether a drug test was passed or failed."). This opinion also noted that"[ w ]ithout a review of the records .. . , I am unable to definitively state whether release of the actual listed drugs is necessary to satisfy the public's interest under the ... balancing test. ... You must consult with your regular counsel to determine whether the [applicant's] privacy interest overrides the public's interest, resulting in nondisclosure of the actual listed drugs." I believe this reasoning applies equally here.

28
See Op. Att'y Gen. 2013-014 ("[A] report reflecting a criminal background check on a public employee is generally considered a personnel record that should be released after making the appropriate redactions."). 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 FOlA 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.