Can the Arkansas AG review a FOIA decision to release a job application from someone who was never hired?
Plain-English summary
Tucker Harris had applied for a job with the Arkansas State Police but was not hired. Someone later filed a FOIA request for his application materials. The custodian (the State Police records office) decided to release medical, prescription, educational, and psychological information from his application. Mr. Harris asked the AG to review whether that decision was consistent with the FOIA.
AG Tim Griffin declined. The AG's review authority under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to two specific categories of records: personnel records, and employee-evaluation or job-performance records. Mr. Harris's application materials were neither.
The reasoning: prior AG opinions (2018-011, 2014-127, 2009-063, 99-002) consistently treat application materials as not "personnel records" if the applicant was never hired. And to qualify as "employee-evaluation or job-performance records" under Thomas v. Hall, 2012 Ark. 66, the records must be (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance or lack of performance on the job. Mr. Harris was not the State Police's employee, never had job duties there, and so his application materials cannot fit that definition either.
Without statutory authority to review, the AG simply could not engage with the merits of the custodian's decision. The opinion is purely jurisdictional.
What this means for you
If you are an unsuccessful job applicant whose materials face FOIA
The AG's review pathway under A.C.A. § 25-19-105(c)(3)(B)(i) is not available to you. That pathway is limited to personnel records and employee-evaluation records. If you were never hired, your application materials do not fit either category for AG review purposes.
That does not mean you have no remedies. The general FOIA framework still applies: a public record is presumed releasable unless an exception applies. Specific privacy-based exceptions (medical privacy, mental-health treatment confidentiality under separate statutes, FERPA for education records) may protect specific items in your file. Consult counsel about whether to file a separate civil action seeking injunctive relief in circuit court.
If you are a FOIA custodian or HR manager
When you receive a FOIA request for an applicant file, ask first: was this person ever hired? If no, the AG cannot review your release decision under the (c)(3)(B)(i) pathway, so the applicant cannot route an objection through the AG. You still have to apply the general FOIA framework: public-record presumption, then any applicable specific exceptions. Consider HIPAA for any medical information, FERPA for transcripts, and any state-law mental-health confidentiality protections before deciding to release.
If you are a current or former employee
If you are or were an employee, the AG can review release decisions under (c)(3)(B)(i) when the records are personnel records or employee-evaluation/job-performance records. That review pathway covers different kinds of objections (privacy in personnel records, the four-part test for evaluation records). This opinion is about why the pathway does not extend to never-hired applicants; if you were employed, the pathway is available.
Common questions
Q: Why is an unsuccessful applicant treated differently from an employee?
A: The statute that creates AG review authority limits review to personnel records and employee-evaluation or job-performance records. The AG's prior opinions and Thomas v. Hall both treat "personnel records" and "employee-evaluation records" as terms of art tied to actual employment.
Q: Are my application materials a "public record" at all?
A: Yes. Under A.C.A. § 25-19-103(7)(A) and Pulaski Cnty. v. Ark. Democrat-Gazette, records held by a public entity are presumed to be public records, although that presumption is rebuttable. The opinion does not say the materials are confidential; it says the AG cannot review the release decision under the specific (c)(3)(B)(i) pathway.
Q: What can I do if my application materials contain medical or psychological information?
A: Different statutes may protect different items. HIPAA may govern certain medical information. State mental-health confidentiality statutes may protect psychological evaluations performed for licensing or employment. FERPA covers education records released by educational institutions. The opinion does not analyze any of these; it just declines AG review on jurisdictional grounds.
Q: Can I file a civil action to block the release?
A: That option is generally available under Arkansas FOIA, separate from AG review. A circuit court has authority to grant injunctive relief if a release would violate the FOIA or another applicable statute. This opinion does not address civil remedies.
Q: Did the AG say the custodian's decision was correct?
A: No. The AG declined to address the merits. The opinion is solely about whether the AG had statutory authority to review, and the conclusion is that the AG did not.
Q: What if the State Police later hires the applicant?
A: The opinion does not directly address that. The AG's review pathway requires the applicant to be an employee for the records to be personnel or employee-evaluation records. If the applicant becomes an employee later, the analysis would have to consider whether the application materials, once incorporated into a personnel file, take on a different character.
Background and statutory framework
Arkansas FOIA's general rule (A.C.A. § 25-19-103 et seq.) is that public records are open to inspection. Two exceptions cover documents in employee files: A.C.A. § 25-19-105(b)(12) protects "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy," and A.C.A. § 25-19-105(c)(1) protects "employee evaluation or job performance records," releasable only after a four-part test (suspension or termination, finality, relevance, compelling public interest).
A.C.A. § 25-19-105(c)(3)(B)(i) creates a specialized AG review pathway. The custodian, requester, or subject can ask the AG for an opinion on whether a release decision is consistent with the FOIA. The opinion serves as persuasive authority and is part of FOIA practice in Arkansas.
The statutory limit, central to this opinion, is the categorical scope: the AG can review only personnel records and employee-evaluation/job-performance records. Other public-record categories (police reports, board minutes, contract files) get no special AG review under (c)(3)(B)(i). The Court's definition of employee-evaluation records in Thomas v. Hall (created by employer, to evaluate employee, detailing performance) requires an actual employment relationship.
The opinion is short. The substantive reasoning, after laying out the statute and the Thomas v. Hall test, is one paragraph: a non-employee never had job duties with the agency, so the records are neither personnel nor evaluation records, so the AG cannot review.
Citations and references
Statutes:
- A.C.A. § 25-19-105(c)(3)(B)(i), AG review authority
- A.C.A. § 25-19-103(7)(A): definition of public record
Cases and prior AG opinions:
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition of employee-evaluation records
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466, same
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), public-record presumption
- Ark. Att'y Gen. Ops. 2018-011, 2014-127, 2009-063, 99-002 (applicants who were not hired)
Source
Original opinion text
Opinion No. 2024-077
September 3, 2024
Tucker Harris
c/o Russell A. Wood
Wood Law Firm, P.A.
501 East 4th Street, Suite 4
Russellville, Arkansas 72801
Dear Mr. Harris:
You have requested an opinion from this office regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of a records request for personnel and evaluation records, is based on A.C.A. § 25-19-105(c)(3)(B)(i).
You applied for employment with the Arkansas State Police ("ASP") but were not hired. The ASP recently received a FOIA request for your application materials, and you object to the release of some information. Specifically, you object to the custodian's decision to release "medical and prescription information," "educational information," and "psychological information."
RESPONSE
Under A.C.A. § 25-19-105(c)(3)(B)(i), I may only review a custodian's decisions related to personnel records and employee-evaluation and job-performance records. But application materials of non-employee, unsuccessful applicants are neither personnel records nor employee-evaluation or job-performance records. Thus, I cannot review the custodian's decision.
DISCUSSION
You have requested an opinion under A.C.A. § 25-19-105(c)(3)(B)(i). My review under that statute is limited to personnel records and employee-evaluation and job-performance records.
You were not hired by the ASP and were never its employee. My predecessors have regularly opined that application materials are not personnel records if the applicant was not hired and was never an employee of the employer. Nor can your application materials be considered employee-evaluation or job-performance records. These types of records must have been created by the employer to evaluate the employee by evaluating the employee's performance or lack of performance of his job duties. Because the ASP was not your employer, you were not its employee, and you did not have job duties with the ASP, your application materials cannot be considered employee-evaluation or job-performance records.
Thus, the records the custodian has decided to disclose are neither personnel records nor employee-evaluation or job-performance records, the only types of records I can review under A.C.A. § 25-19-105(c)(3)(B)(i). Therefore, I have no authority to review the custodian's decision.
Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General