If I applied for a public job and never got hired, can I block the city from releasing my application under FOIA?

Plain-English summary

Angela Johnson applied for the position of FOIA Coordinator at the City of Little Rock. The City received a FOIA request for "all applications submitted to the City of Little Rock for the open position of FOI Coordinator." The custodian decided to release Johnson's resume with redactions of address, DOB, phone, and Social Security info. Johnson objected and asked the AG for review.

The AG declined. The reason: under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the AG can review a custodian's decision only at the request of (1) the custodian, (2) the requester, or (3) the subject of personnel or employee-evaluation records. The AG had a "longstanding interpretation" that job applications of persons who are not yet public employees do not qualify as "personnel records" unless the applicant is hired. Since Johnson was just an applicant and had not been hired, her resume was not a personnel record, and she was not a "subject" entitled to seek AG review.

In footnote 4, the AG cited Watkins, Peltz-Steele, and Steinbuch's The Arkansas Freedom of Information Act (6th ed., 2017) as disagreeing with her office's view and noted that two trial courts had divided on the question. She did not resolve that disagreement in this opinion.

Practical implications:

• Even though the AG declined review, Johnson could pursue judicial remedies under Ark. Code Ann. § 25-19-107 in Pulaski County Circuit Court or the circuit court of her residence.
• The AG described the City's proposed redactions of Johnson's address, date of birth, telephone number, and Social Security information, but did not decide whether those redactions were required or permissible.

The AG also reiterated the general framework: a record must be (1) requested from a covered entity, (2) a public record, and (3) not subject to an exemption. Footnote 1 says the first two elements "seem to be met." The AG said she could not resolve the third element in this opinion.

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.

Common questions

Q: Why is an applicant not a "subject" of personnel records?
A: The AG's logic: "personnel records" are records about employees. Applicants are by definition not yet employees. So their applications are not "personnel records." The AG's review authority is limited to personnel and evaluation records, so the applicant cannot use that procedural channel.

Q: Are the records still public?
A: The AG said the request appeared to concern public records under Ark. Code Ann. § 25-19-103(7)(A), but she could not determine whether an exception allowed any part to be withheld. She declined to review the custodian's release decision; court review under § 25-19-107 remained available.

Q: Did the AG mention a different view of applicant records?
A: Yes. Footnote 4 cites Watkins, Peltz-Steele, and Steinbuch's The Arkansas Freedom of Information Act as disagreeing with the AG office's interpretation and says two trial courts had divided on the question. The AG still declined to review this applicant's objection.

Q: Did the AG approve the City's privacy redactions?
A: No determination appears in this opinion. The AG described the custodian's plan to redact Johnson's address, date of birth, telephone number, and Social Security information, then said she could not resolve whether an exception permitted withholding any portion of the record.

Q: What if I want to keep my application out of the public record entirely?
A: The AG declined review because Johnson had not been hired and her resume did not qualify as a personnel record under the office's interpretation. She expressly said Johnson could seek judicial remedies under FOIA. The opinion does not predict the result of a court challenge.

Background and statutory framework

The AG's review authority in personnel-record disputes is created by Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lists three eligible requesters: the custodian, the requester (the FOIA seeker), or "the subject of personnel or employee-evaluation records." The AG has long held that "subject" requires actual employee status, not applicant status (Ops. Att'y Gen. 2016-004, 2014-127, 2009-156).

The narrow-construction principle, that FOIA exceptions are construed narrowly (Stilley v. McBride, 332 Ark. 306, 313 (1998), and Ops. Att'y Gen. 2015-057, 2015-024), runs in the opposite direction: it favors disclosure, not the applicant's privacy claim.

The AG's footnote cites Watkins, Peltz-Steele, and Steinbuch, The Arkansas Freedom of Information Act (6th ed., 2017), at 200-02 as disagreeing with the office's interpretation. It also notes that two trial courts divided on the question, without describing their reasoning.

Ark. Code Ann. § 25-19-107 supplies the judicial-review path that an applicant can still use even when the AG cannot review.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review authority)
• Ark. Code Ann. § 25-19-103(7)(A) (public-records definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-107 (judicial review)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

Opinion No. 2019-058
September 13, 2019

Angela Johnson
c/o FOIA Coordinator, City of Little Rock
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428

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 subdivision 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 the City of Little Rock has received a FOIA request for "all applications submitted to the City of Little Rock for the open position of FOI Coordinator." The records custodian has determined that your resume is a personnel record that is subject to disclosure after sensitive personal information such as address, date of birth, telephone number or Social Security information has been redacted. You object to the release of your resume, citing violations of your privacy and professional integrity. You ask whether the custodian's decision to release the requested record is consistent with the FOIA.

RESPONSE

I am unable to opine as to the custodian's decision in this matter because it does not appear from your correspondence that you are an employee of a public entity, but rather, as yet, only an applicant. As stated above, subdivision 25-19-105(c)(3)(B)(i) only authorizes a custodian, requester, or the subject of personnel or employee-evaluation records to seek my opinion as to the custodian's decision with respect to such records. It has been the longstanding interpretation by this office that job applications of persons who are not already public employees do not qualify as personnel records unless such persons are hired. While your request is, therefore, outside the scope of my review, I can provide a basic legal framework as a guide.

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, or discrete portions of the document, to be withheld. It is this final issue that I cannot resolve in this opinion.

The FOIA only authorizes me to render an opinion with respect to the exemptions relating to public-employee records, either personnel or evaluation records. This office has consistently opined that a "personnel record" is any record that is not an employee evaluation that pertains to an individual employee. Personnel records are open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

As noted above, your correspondence suggests you are not yet a City employee, but only an applicant. Since applicants, by definition, are neither "personnel" nor "employees," their job applications and resumes do not qualify as personnel records unless they are hired. Accordingly, the very limited exemption to the disclosure of personnel records would not apply. This result is required by the rule that, when there is a reasonable doubt about an exception's meaning or application, the exception should be narrowly construed to exempt the fewest records.

Since you state that you have not been interviewed for the position, it seems clear that the record in dispute does not qualify as a personnel record. Therefore, your objection to the record's release is beyond the scope of my review.

As a final matter, please note this opinion does not preclude you from pursuing judicial remedies afforded by the FOIA. The custodian's decision is subject to court review to enforce their rights granted by the FOIA. Such an appeal may be made to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1 The first two elements seem to be met. First, the request was made to the City of Little Rock, which is a public entity subject to the FOIA. Second, the request appears to pertain to public records, which the FOIA defines 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 ...." Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).

2 See Ops. Att'y Gen. 2015-072, 2015-034.

3 Ark. Code Ann. § 25-19-105(b)(12).

4 See, e.g., Ops. Att'y Gen. 2016-004, 2014-127, 2009-156. But see John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 200-02 (Arkansas Law Press, 6th ed., 2017) (disagreeing with this view and noting that two trial courts have divided on the question).

5 See generally Ops. Att'y Gen. 2015-057, 2015-024; Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

6 See generally Op. Att'y Gen. 2012-146 (explaining why only public employees can have personnel records or employee-evaluation records for purposes of the Ark. Code Ann. § 25-19-105(b)(12) and (c)(1)).

7 Ark. Code Ann. § 25-19-107.

8 Id.