Can an Arkansas school district avoid Arkansas FOIA by hiring a private firm to handle confidential superintendent applications?

Plain-English summary

Representative Monte Hodges described a school district considering a private firm to recruit a new superintendent. The firm proposed receiving the applications and putting applicant information on a web page accessible only to school board members. Hodges asked whether the applicants and their applications would be subject to the Arkansas Freedom of Information Act.

AG Leslie Rutledge answered yes on the facts presented. A firm accepting applications for the district's superintendent position would act as the district's functional equivalent. The applicant list and applications would therefore be public records. Keeping them with the contractor or behind a restricted web page would not remove them from the FOIA.

Public-record status does not mean every item must be released. The AG said the records are subject to disclosure unless an exemption applies, and that job applications generally must be disclosed after exempt information is removed. She identified Social Security numbers and public employees' personal contact information as examples. The opinion does not decide the status of every detail in a particular application.

Currency note

This opinion was issued in 2018. Later law may affect the analysis. Check current FOIA exemptions before responding to a particular request.

Common questions

Does using a private search firm make superintendent applications confidential? No, on the facts described to the AG. The firm would be doing the district's work of receiving applications, so the list and applications would be public records.

Must the district release each application in full? Not necessarily. The AG said disclosure is subject to any applicable exemption. Applications generally should be released after exempt information is removed.

What information did the opinion identify for deletion? It names Social Security numbers and public employees' personal contact information as examples. It does not classify every field an applicant might supply.

Does this decide how a city or university search firm must respond? No. The opinion answers a superintendent-search question under the facts supplied. It cites cases involving outside counsel and auditors to explain the functional-equivalence rule, but it does not decide other executive searches.

Background and statutory framework

The FOIA definition of public records includes material kept as a record of official functions performed by a public agency or another agency supported by public funds. The AG relied on Arkansas Supreme Court decisions holding that public business does not lose its public-record character because a government body delegates the work to a private contractor. She applied that reasoning to the proposed superintendent search and reserved the effect of any exemption on release.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (public-record definition)
• Ark. Code Ann. § 25-19-105(b)(13) (public employees' personal contact information)
• City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990)
• Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995)

Source

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

Original opinion text

Opinion No. 2018-012
April 13,2018
The Honorable Monte Hodges
State Representative
P. 0. Box 773
Blytheville, AR 72316-0773
Dear Representative Hodges:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDG E
You have asked for my opinion concerning employment applications and the Arkansas Freedom of Information Act ("FOIA"). As background for your question, you state that a school superintendent resigned and the school board decided to interview firms that specialize in recruiting school leaders. You report that one firm under consideration told the school board that it would receive all applications and that "the applicants and their applications would be confidential and only members of the [School] Board would have access to the applicants' information." You further report that the firm said it "would establish a confidential web page with all the applicants listed and this web page could be accessed by the Board members only." You ask in this regard: Are the applicants (their applications) seeking employment in the public school subject to the Arkansas Freedom of Information Act? RESPONSE In my opinion, the answer to your question is "yes" under the facts you have outlined. 323 CENTER STREET. SU ITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV The Honorable Monte Hodges State Representative Opinion No. 2018-012 Page 2 DISCUSSION It appears that the school district anticipates conducting its search for a new superintendent through a private firm retained for that purpose. When the firm accepts applications for the superintendent position, it is acting as the functional equivalent of the district. This means that the list of applicants and their applications will be "public records" under the FOIA.1 The Arkansas Supreme Court has summarized the functional-equivalence test as follows: In City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), we held that memoranda prepared in anticipation of litigation by a city's outside counsel were public records under the FOIA. In so holding, we pointed out that the attorneys who wrote the memoranda were acting as the functional equivalent of a city attorney and were paid by public funds. Id. Therefore, the city could not avoid FOIA requirements by substituting a private attorney for the city attorney. Id. Likewise, in Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995), where a state agency hired an outside auditing company to perform required audits, the working papers of the outside auditors were considered public records and the agency was required to provide access to them under the FOIA.2 In Edmark, the Court quoted the following from a law review article in support of its reasoning: When the state or a political subdivision thereof seeks to conduct its affairs through private entities, it seems clear that those entities are for all practical purposes the government itself. It should not matter whether the activity is "proprietary" or "governmental" in nature, for 1 The FOIA defines public records in relevant part as follows: 'Public records' means 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 that constitute a record of the performance or lack of performance of official functions that 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 .... Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). 2 Fox v. Ferroni, 358 Ark. 251, 256-57, 188 S.W.3d 881, 885 (2004). The Honorable Monte Hodges State Representative Opinion No. 2018-012 Page 3 in either case the government is involved in the "public business". Thus when a county official hires a certified public accountant to conduct an audit of a county department instead of using public employees for that purpose, the CPA's records relevant to that task should be obtainable under the FOIA.3 Here, similar to Edmark, the school district will not avoid the FOIA requirements by conducting its search for a new superintendent through a private firm. In my opinion, the list of applicants and the applications will be "public records" under the FOIA. This means that the list and applications will be subject to disclosure unless some exemption prevents their release. In this regard, this office has consistently opined that job applications must generally be disclosed4 after deleting any exempt information, such as social security numbers5 and public employees' personal contact information.6 Sincerely, d:·=-=:>~ LESLIE RUTL~ Attorney General 3 304 Ark. at 187, 801 S.W.2d at 279 (quoting John J. Watkins, Access to Public Records under the Arkansas FOIA, 37 Ark. L .Rev. 741, 764 (1984)). 4 See, e.g., Ops. Att'y Gen. 2009-063 (and opinions cited therein) and 2006-193 (noting that "it would be unusual for a job application to contain information sufficiently private to warrant withholding the record from public inspection.") 5 See Ops. Att'y Gen. 2001-091, 99-451. 6 Ark. Code Ann.§ 25-19-105(b)(l3) (Supp. 2017).