Can my old job application and resume become public records when I take a job with a county government, and what about my private-sector salary history?

Plain-English summary

Christen Carter, an investigator at the Pulaski County Public Defender's Office, asked the AG to review the custodian's decision to release her job application and resume in response to a FOIA request. Her objections all sounded in personal privacy.

The AG mostly upheld the custodian's decision but identified one issue: the resume contained salary information from previous private-sector employers. That, the AG said, was highly personal financial information whose privacy interest under the Young v. Rice balancing test typically outweighs the public interest. The AG recommended additional redaction of the prior private-employer salary numbers before release.

The opinion lays out three useful points for the broader FOIA audience:

1. Job applications are public records. The office had repeatedly opined that applications for public jobs are records of "the performance of public officials charged with the responsibility of reviewing those applications," so they meet the public-records definition.

2. They are personnel records, not evaluation records. Applications precede employment and do not detail performance on the job. They go through the Young v. Rice "clearly unwarranted invasion of personal privacy" test.

3. The default outcome for personnel records is disclosure. The thumb is on the scale in favor of release. A general personal-privacy claim does not flip it. Specific items that must be redacted (regardless of the overall test's outcome) include personal phone numbers and home addresses, employee ID numbers, marital status, dependents, dates of birth, Social Security numbers, medical information, undercover law-enforcement identifiers, driver's license numbers, insurance, tax, payroll, and banking info.

The AG's distinction on private-sector salary history was the practical newcomer here: while public salary information is presumptively disclosable (the public is paying it), private-sector compensation paid by a previous employer is not similarly transparent, and the public interest in seeing what someone made in a different job is "not immediately apparent."

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 are job applications considered public records when the applicant might not even be hired?
A: Because the public agency keeps them in the course of carrying out the public function of reviewing and selecting candidates. The act of evaluating applications is itself a public function, so the records of that activity are public.

Q: Could the applicant's current (public-sector) salary be redacted on the same theory?
A: No. The AG explicitly distinguished private-sector salary from public-sector salary. The public's interest in seeing what taxpayers are paying a public employee is substantial, so public salary is presumptively disclosable.

Q: What about the home address on the application?
A: That has to be redacted regardless of the Young balancing. Ark. Code Ann. § 25-19-105(b)(13) makes personal contact info of public employees specifically nondisclosable.

Q: Can the subject's stated objections affect the outcome?
A: Generally no. The Young test is objective. The Arkansas Supreme Court in Stilley v. McBride, 332 Ark. 306 (1998), put the burden on the person resisting disclosure. The fact that the subject considers release an invasion of privacy is irrelevant; what matters is whether the records are objectively of an intimate nature.

Q: Could a future job reference letter from a prior employer be redacted?
A: That depends on the document. Reference letters that contain genuinely intimate information might be redacted in part. But reference letters that simply attest to job performance are typically disclosable as part of the personnel file once the person is hired.

Background and statutory framework

The personnel-records exception lives at Ark. Code Ann. § 25-19-105(b)(12), which makes such records disclosable except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's two-step balancing test in Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992), is: (1) is the privacy interest greater than de minimis, and (2) does it outweigh the public's interest in disclosure, with the scale tilted toward disclosure?

The "shed light on the workings of government" framing comes from earlier AG opinions (Op. Att'y Gen. 2019-047, 2018-061). That framing is what makes private-sector salary history different from public-sector salary: the former does not illuminate how government works, so the privacy interest can carry the day.

The list of items requiring per-line redaction is built up across decades of AG opinions. The opinion lists the recurring categories.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review)
• Ark. Code Ann. § 25-19-103(7)(A) (public-records definition)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officers)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• 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. 2019-065
October 25, 2019

Christen E. Carter, Investigator
Pulaski County Public Defender's Office
201 South Broadway
Little Rock, AR 72201

Dear Ms. Carter:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, made in your capacity as the subject of the records, 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 Pulaski County Public Defender's Office ("PDO") has received a request for your job application and resume pursuant to the FOIA. You have attached a copy of the documents at issue, as redacted by the custodian. You make several objections to the records' disclosure, all of which can be summarized as an objection based on an invasion of your personal privacy. You ask whether the custodian's 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. Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that the decision to disclose the records as redacted is mostly consistent with the FOIA. As explained further below, the resume document includes private-employment salary information that may be protected on privacy grounds.

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 PDO, which is a public entity subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. This office has consistently maintained that job applications kept by a public entity qualify as "public records" and must be disclosed unless some specific exception provides otherwise. Accordingly, the analysis 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 tests for whether these two types of documents may be released differ 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 or not the FOIA requires that record be disclosed. In this instance, it is apparent from the face of the records that they would properly be classified as a public employee's personnel record. Because the relevant exception in this instance appears to be 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, in Young v. Rice, 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 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));
• Employee personnel number;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• A public employee's driver's license number and a photocopy of the employee's driver's license;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

III. Application.

It is my understanding that the documents you submitted for my review are your application and resume for a position with Pulaski County. Your objections to the release of these records can be fairly reduced to your interest in your personal privacy outweighing the public's interest in disclosure. In my opinion, your objections are not legally sufficient reasons to withhold the records. Personnel records of public employees are subject to disclosure under the FOIA except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Regarding job applications, this office has repeatedly indicated that the release of such records rarely rises to such a level. Applying the balancing test for personnel records discussed above would not, in my opinion, tip the balance in favor of withholding the requested documents.

Thus, it is my opinion that the custodian's decision to release the records is consistent with the FOIA for the most part. While the custodian has mostly complied with the FOIA in redacting certain personal information that cannot be released, a few additional redactions may be necessary. The resume document includes private-employment salary information that may be protected on privacy grounds under the above balancing test. This salary information, in my opinion, qualifies as highly personal financial information. And when the balancing test is applied to this type of information, the balance most often tips in favor of the individual's privacy interest. While the public plainly has a substantial interest in obtaining salary information of a public employee when the salary is paid from public funds, the public's interest in obtaining information about salaries paid by private employers is not immediately apparent.

The question of whether the release of any particular personnel record (or of specific information contained therein) would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. There may be factors of which I am unaware that might indicate a heightened public interest in this private-sector salary information. But absent such factors, I believe this information should be redacted prior to the records' release.

Sincerely,

LESLIE RUTLEDGE
Attorney General