Can an Arkansas city release a job applicant's application under FOIA over the applicant's objection?

Plain-English summary

Monique L. Johnson applied for several positions in the Little Rock city manager's office. Someone, presumably a journalist, filed a FOIA request asking for the job applications, resumes, and other materials submitted for those positions, plus communications about the hiring. The City of Little Rock's records custodian determined that Johnson's application was a personnel record subject to release after exempt personal information was redacted. Johnson objected, telling the city: "I do not want any of my information given to a newspaper just because I applied for a job."

Attorney General Leslie Rutledge reviewed the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets a custodian, requester, or subject of personnel records seek an AG opinion on whether release is consistent with FOIA. The AG concluded that the custodian's decision was generally consistent with FOIA: job applications submitted to a public entity are personnel records, and the AG's office had repeatedly held that releasing such records rarely rises to a "clearly unwarranted invasion of personal privacy" once exempt personal information is redacted. The applicant's preference, however strongly held, was not a legally sufficient ground to withhold them.

Currency note

This opinion was issued in 2019. 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.

Background and statutory framework

Under the Arkansas FOIA, three things must be true for a record to be releasable: the entity must be subject to FOIA, the document must be a public record, and no exception must apply. The City of Little Rock is plainly subject to FOIA, and records held by a public entity are presumed to be public records.

Two FOIA exemptions cover items typically found in personnel files:

• Personnel records (Ark. Code Ann. § 25-19-105(b)(12)): releasable except where doing so would constitute a "clearly unwarranted invasion of personal privacy."
• Employee evaluation or job performance records (Ark. Code Ann. § 25-19-105(c)(1)): releasable only after a final administrative resolution of a suspension or termination, where the records formed a basis for the discipline, and where there is a compelling public interest.

The opinion focused on the first exemption. The Arkansas Supreme Court in Young v. Rice set out a two-step balancing test: (1) does the information give rise to more than a de minimis privacy interest, and if so, (2) is that interest outweighed by the public's interest in disclosure? Stilley v. McBride later confirmed that the person resisting disclosure carries the burden, with the scale tipped in favor of release.

Why the AG concluded job applications are usually releasable

The opinion drew on prior office views (Ops. Att'y Gen. 2017-121, 2014-123, 2010-070) holding that release of job applications and resumes "rarely rises" to the level of a clearly unwarranted invasion of privacy. Two reasons drive that conclusion. First, the test is objective: how a reasonable observer would weigh the privacy interest against the public's interest, not how the subject feels about it. Second, applying for public employment puts the applicant's qualifications, education, and experience squarely into the realm of "what the government considered when filling a public position," which is core to FOIA's purpose.

The opinion was careful to note its limits. The AG had not seen the actual records and could not opine on any specific document or specific redaction. The custodian still had to apply the law: classify each document, identify any exempt personal information (home address, date of birth, Social Security number, medical information, undercover-officer identifiers, driver's license numbers, insurance, tax withholding, payroll deductions, banking information), and redact those before releasing the rest.

Common questions

Can a public agency release a job applicant's application under Arkansas FOIA?

The opinion concluded that yes, generally, applications submitted for a public-agency position are personnel records subject to release after redacting exempt personal information. Each record still has to be reviewed individually.

What can be redacted from a job application before release?

The opinion listed the categories of personal information that must be redacted: home addresses, personal phone numbers and email, marital status and dependent information, dates of birth, Social Security numbers, medical information, undercover-officer identifiers, driver's license numbers, insurance coverage, tax withholding, payroll deductions, and banking information.

Does the applicant's objection prevent release?

The opinion concluded that no, the applicant's preference was not a legally sufficient reason to withhold. The Young v. Rice test is objective. The applicant's subjective view does not factor in.

What if the applicant fears reputational harm or disclosure to a newspaper?

The opinion did not weigh those concerns separately. Under FOIA, the requester's identity (even a newspaper) and the requester's motive are generally irrelevant to whether a record must be released.

What are "employee evaluation or job performance records," and were they at issue here?

Those are a separate exemption category, generally records created by the employer to evaluate the employee's performance. They were not the focus of this opinion, which addressed an applicant rather than a current employee.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998); prior AG opinions cited include 2017-121, 2014-123, 2010-070, 2018-121, 2018-087, 2010-044, 2007-064, 2006-035, 2003-153, 2007-025, 2004-167, 2005-194, 2003-385, 98-126, 2001-080, 2015-072, 99-147, 2016-055, 2001-112, 2001-022, and 94-198.

Source

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

Original opinion text

Opinion No. 2019-003
January 14, 2019
Monique L. Johnson
c/o Sandy R. Edgar
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
HR Specialist/FOIA Coordinator
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Ms. Johnson:

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. 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 someone has requested "job applications, resumes and other relevant materials that the [C]ity of Little Rock has received for the positions of the mayor's chief of staff, assistant to the mayor, and administrative assistant to the mayor…," along with "any communication from or that includes City Manager Bruce Moore about those positions." The records custodian has determined that you are a subject of this request and the records requested can be released under the FOIA as your personnel record after certain personal information is redacted. You have objected to the release of any of your information, stating: "I do not want any of my information given to a newspaper just because I applied for a job."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Not having seen any of the records the custodian intends to release, I cannot definitively opine about any particular records. However, the information before me states that the custodian has determined that your application for one or more of the above positions is your personnel record that is subject to release after redacting certain exempt personal information. In my opinion, that decision is generally consistent with the FOIA. And your stated objection to the records' release is not a legally sufficient reason for the custodian to withhold them. Finally, I cannot opine as to the custodian's decisions, if any, with respect to the "other relevant materials" that have been requested.

I will set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 the City of Little Rock, which is a public entity subject to the FOIA. Moreover, 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…." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

The custodian appears to have determined that the records at issue are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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. 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. Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court 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.

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. 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. 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.

The fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

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)(13));
• 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);
• Banking information (Op. Att'y Gen. 2005-194).

III. Application.

As stated above, whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is a question of fact. But with respect to job applications and resumes, this office has repeatedly indicated that, in general, the release of such records rarely rises to such a level. And although I have not seen the records that are at issue here, it is my opinion that the custodian's decision to release those records, with exempt personal information redacted, is in all likelihood consistent with the FOIA.

Furthermore, your reasons for objecting to the records' disclosure do not form a legally sufficient basis for the custodian to withhold them. The mere fact that the subject of records does not want the records disclosed or does not believe disclosure would benefit anyone else cannot factor into the custodian's analysis. The test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public.

Finally, with respect to the "other relevant materials" that have been requested, I am unable to render an opinion. As I have mentioned, I have not seen the records at issue in this matter. Nor have I been made aware of any additional records that the custodian intends to release in response to the FOIA request. But to the extent that there are additional relevant records, I can only reiterate the legal analysis the custodian must employ to determine whether those records must be disclosed.

Sincerely,
LESLIE RUTLEDGE
Attorney General