Can a county release a successful job applicant's records to a TV station under Arkansas FOIA, and what redactions are appropriate?

Plain-English summary

Perry County Judge Toby Davis asked the Attorney General to review the county's response to a reporter's FOIA request for records about hiring for an Office of Emergency Management position. The county sent the AG redacted documents but no unredacted originals. The AG said the decision to disclose the successful applicant's job application was consistent with FOIA. She could not, however, determine the basis for every redaction or say all of them were proper.

The AG identified one concern: redactions of the applicant's references' names and contact information were "at least questionable." She said her office had consistently treated that information as not exempt when it appears in an otherwise nonexempt public record. Footnote 18 adds a specific qualification: if a reference is a current or former public employee, that person's personal contact information must be redacted. The footnote does not say the person's name must be redacted. Because she lacked the unredacted records, the AG did not make a final ruling on the county's particular reference redactions.

The submitted copies also contained pages that appeared blank but still had redactions. The AG said she could render no opinion on those pages. The opinion does not identify what the hidden material was.

Currency note

Issued December 14, 2018. The AG reviewed redacted copies, not the original records, and applied the FOIA as it stood then. Check current law and the actual documents before relying on this result.

What the custodian must check

The AG classified the successful applicant's job application as a public record and a personnel record. She explained that personnel records generally are open except to the extent disclosure would be a "clearly unwarranted invasion of personal privacy." Under Young v. Rice, the custodian weighs privacy against the public interest in access, with the scale tipped toward disclosure. Even when a record as a whole is releasable, discrete information may need redaction.

The AG observed that redaction of the applicant's own personal contact information appeared consistent with FOIA. Without the unredacted document, she could not confirm other redactions or their basis. For references, her concern was whether the county had withheld names and contact details that were not exempt. Her footnote preserves a narrower rule for personal contact information belonging to a public-employee reference. The opinion does not establish a blanket exemption for all reference identities.

Common questions

Are applications for county jobs public records?

The AG said applications kept by public entities qualify as public records and that the successful county applicant's application was a personnel record. She found the decision to disclose this application consistent with FOIA, subject to proper redactions.

May the county redact every reference's name and contact details?

The AG called the redactions before her "at least questionable" and said reference names and contact details in a nonexempt public record generally are not exempt. Footnote 18 says a current or former public employee reference's personal contact information must be redacted. The AG could not decide each actual redaction without the unredacted records.

What did the apparently blank pages show?

The AG could not tell. She said redactions appeared on pages that otherwise looked blank and rendered no opinion on them.

Did the AG approve the rest of the county's redactions?

No. She said the unredacted records were necessary to determine the basis and propriety of all redactions. Only some, such as the applicant's personal contact information, appeared consistent from the copies she saw.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), (b)(13), (c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Ops. Att'y Gen. 2016-129, 2016-118.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE O F ARKAN SAS
ATTORN EY GEN ERAL
LE SLI E RU T LEDG E

Opinion No. 2018-145

December 14, 2018

The Honorable Toby L. Davis
Perry County Judge
310 West Main Street
P. 0. Box 358
Perryville, AR 72126

Dear Judge Davis:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian, is based on Ark. Code Ann.§ 25-19-105(c)(3)(B)(i) (Supp. 2017). 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 a reporter with KARK-TV, Channel 4 and Fox 16, has requested copies of "all applications and resumes submitted to Perry County for the position of Office of Emergency Management ... including [one employee's] application and resume," as well as "a copy of [the employee's] offer letter, current salary information and all other benefits received,'' along with other information from the employee ' s personnel file. You have attached several redacted documents that you have determined are responsive to the request. You have not, however, sent the documents in their unredacted form for me to review. You ask whether your decision to release the documents as redacted is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian ' s decision is consistent with the FOIA. In my opinion, the decision to disclose the records is correct. But because I have not reviewed the unredacted documents, I cannot opine as to the propriety

323 CENTER STREET. S UI TE 200 · LI TTLE ROCK. ARK/\NSJ\S 72201 TELEP HONE (501) 682-2007 ·FAX (50 1) 682-8084 ARKAN SASAG.GOV

The Honorable Toby L. Davis
Perry County Judge
Opinion No. 2018-145
Page 2

of all of the redactions that have been made or determine the basis for these redactions. I will set out the relevant definitions and standards.

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 seem to be met. The request was made to Perry County, which is a public entity subject to the FOIA. 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 .... " 1 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 2

As I understand it, the documents you submitted for my review are the job application of a successful candidate for a position with the county. This office has consistently maintained that a job application kept by a public entity qualifies as a "public record" 3 and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).

2
See Op. Att'y Gen. 2010-044.
3
See Ops. Att'y Gen. 2016-075, 2015-130, 87-070 (stating that applications are "a record of the performance of public officials charged with the responsibility of reviewing those applications and deciding on the most qualified candidate.").

The Honorable Toby L. Davis
Perry County Judge
Opinion No. 2018-145
Page 3

in employees' personnel files. 4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records." 6 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. Although the custodian in this instance has not expressly stated his determination of the type of record the documents are, it is apparent from the face of them that they are properly classified as the applicant's personnel record. Because the relevant exception in this instance appears to be the one for personnel records, I will limit my discussion to records of that type.

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 leading commentators on the FOIA have repeatedly observed that job applications of public employees, and accompanying resumes,

4
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 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).

5
Ark. Code Ann.§ 25-19-105(b)(l2): "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."

6
Ark. Code Ann. § 25-19-105( c )( 1): "Notwithstanding subdivision (b )(12) 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."

7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

The Honorable Toby L. Davis
Perry County Judge
Opinion No. 2018-145
Page 4

generally meet this definition. 8 Accordingly, such a job application is generally open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. " 9

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 10 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 the scale tipped in favor of disclosure. 11

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 12 privacy interest. 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. 13 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. 14 The fact that the subject of records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 15

8
Op. Att'y Gen. 2016-075 at n.5 (and opinions cited therein).
9
Ark. Code Ann. § 25-19-105(b )( 12).
10
308 Ark. 593, 826 S.W.2d 252 (1992).
11
Watkins, et al., at 208.
12
Young, 308 Ark. at 598, 826 S.W.2d at 255.
13
Id., 826 S.W.2d at 255.
14
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
15
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

The Honorable Toby L. Davis
Perry County Judge
Opinion No. 2018-145
Page 5

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 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));

• 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)(l0));
• Driver's license number and photocopy of driver's license (Op. Att'y Gen.
  2017-125, 2013-090);
• 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 ).

III. Application.

In my opinion, the decision to disclose the employee's job application is consistent with the FOIA. As stated above, this office has consistently opined that job applications kept by public entities are public records. 17 Moreover, the job applications of public employees are considered those employees' personnel

16
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
17
See supra note 3 and accompanying text.

The Honorable Toby L. Davis
Perry County Judge
Opinion No. 2018-145
Page 6

record that should be released with certain information that would constitute a clearly unwarranted invasion of the employee's personal privacy redacted.

I have not, however, been provided a copy of the records intended for release in their unredacted form. Accordingly, I cannot definitively opine as to propriety of all of the redactions that the custodian has made or determine the basis for these redactions. While it appears from the face of the records before me that some of the redactions-such as the applicant's personal contact information-are consistent with the FOIA, I cannot opine on whether other redactions are similarly consistent. Indeed, some redactions appear to be at least questionable- specifically, the decision to redact the names and contact information of the applicant's references. This office has consistently opined that such information, 18 when contained in a non-exempt public record, is not exempt from disclosure. Additionally, the records sent for my review contain a number of what seem to be blank pages but upon which redactions appear to still have been made. Obviously, I cannot render any opinion as to these pages.

Sincerely,

.?:~~:;-;~:=:>- L. /./?17
LESLIE RUTLEDGE
Attorney General

18
See, e.g., Op. Att'y Gen. 2016-129. But see Op. Att'y Gen. 2016-118 at n.20 and accompanying text (noting that if a job applicant's references are current or former public employees, then their personal contact information must be redacted).