Are the application materials and interview scoresheets for candidates in a public school superintendent search subject to public release?

Subject

How the Arkansas Freedom of Information Act treats Candidate Input Forms from a public school superintendent search when the applicant was hired, was an existing employee who was not hired, or was an outside applicant who was not hired.

Plain-English summary

The Huntsville School District planned to release interview panelists' Candidate Input Forms without redactions after receiving a FOIA request. Its lawyer asked the Attorney General to review that decision. The AG gave different answers depending on the applicant's relationship to the district:

• Successful applicant: The forms are personnel records. The AG concluded the district could disclose the successful applicant's forms without redactions under the privacy balancing test.
• Unsuccessful applicant already employed by the district: The forms are personnel records, but the applicant's name and information that would reasonably identify the person should be redacted before release.
• Unsuccessful outside applicant: The AG said the forms are neither personnel records nor employee-evaluation or job-performance records, so he lacked authority under A.C.A. § 25-19-105(c)(3)(B)(i) to review the custodian's decision. He did not decide whether those forms should be released.

The AG lacked enough information to classify each individual candidate and could not read one faint page supplied with the records. His conclusions describe how the custodian should treat the applicant categories rather than identify which submitted page belongs to whom.

What this means for you

School district records custodians

Determine first whether each candidate was hired, was already a district employee but not hired, or was an outside unsuccessful applicant. For the first two categories, the opinion gives the treatment of the Candidate Input Forms. For the third, the AG review route is unavailable; the custodian still must apply the general FOIA rules. The opinion says records held by a public entity are presumed public records, but that presumption is rebuttable and exemptions must be considered.

People requesting superintendent-search records

This opinion supports release of the successful applicant's Candidate Input Forms without redactions and release of an unsuccessful internal applicant's forms after identity redactions. It gives no final release decision for an unsuccessful outside applicant's forms. Ask the custodian for the basis of its decision on that category rather than treating the AG's lack of review authority as a disclosure ruling.

Internal applicants

If you were already a district employee and were not selected, the opinion says your name and details that would reasonably identify you should be redacted from the forms before release. The custodian must examine the actual content for those identifying details.

Common questions

Are the hired candidate's Candidate Input Forms released with name or contact details removed?

The AG approved the district custodian's decision to disclose the successful applicant's forms without redactions. The opinion does not analyze a separate contact-information redaction for those forms.

What is redacted for an unsuccessful internal candidate?

The AG says to remove the candidate's name and any information that would reasonably identify that person. The remaining forms are releasable as personnel records.

Are unsuccessful outside applicants' forms public?

The AG did not decide. He said the forms were outside the personnel and employee-evaluation categories that trigger his review authority. He separately said the records appeared to be public records and that records held by a public entity carry a rebuttable presumption of public status. The custodian must apply the ordinary FOIA analysis.

Why did the AG treat successful and unsuccessful employees differently?

For personnel records, Young v. Rice requires balancing privacy and public access. The AG cited earlier opinions finding that balance favors release of the successful applicant's forms. For an unsuccessful applicant who was already an employee, he cited opinions finding the public interest generally satisfied after identifying details are removed.

Background and statutory framework

The opinion states three general conditions for FOIA release: a request to a covered entity, a public record, and no exemption permitting withholding. The district is covered and its records appeared to be public, so the AG turned to exemptions. He distinguishes personnel records from employee-evaluation or job-performance records because the release tests differ.

The AG classified the Candidate Input Forms for a successful applicant as personnel records and applied the Young v. Rice privacy balance. He also classified the forms of an unsuccessful existing employee as personnel records, subject to identity redactions. For an unsuccessful nonemployee, he found neither category applied and therefore declined review under § 25-19-105(c)(3)(B)(i). His footnote adds that public records remain releasable if no exemption applies, even when this AG review route is closed.

Currency note

This opinion was issued in 2024. Check current Arkansas FOIA law and the actual records before making or challenging a release decision.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (AG review of specified records)
• A.C.A. § 25-19-103(7)(A) (public records)
• A.C.A. § 25-19-105(c)(1) (employee-evaluation records)
• Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89 (1987) (FOIA release conditions)
• Young v. Rice, 308 Ark. 593 (1992) (personnel-record privacy balance)
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007) (rebuttable public-record presumption)

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2024-096

December 26, 2024
Marshall S. Ney
Friday, Eldredge & Clark, LLP
3350 South Pinnacle Hills Parkway, Suite 301
Rogers, Arkansas 72758

Dear Mr. Ney:

You have requested an opinion from this office regarding the Arkansas Freedom of Information Act (FOIA). Your request is made under A.C.A. § 25-19-105(c)(3)(B)(i) as a legal representative of the Huntsville School District, which is the custodian of personnel and evaluation records.

You indicate that the District recently interviewed candidates to become the next Superintendent of Schools. Now, someone has submitted a FOIA request to the District for “pre-employment evaluation records.” You have provided me with written evaluations called “Candidate Input Forms” that were created by the interview panelists for each candidate. 1 You state that one of the candidates was hired but the others were not. 2 The custodian of these records intends to disclose without redactions.

RESPONSE

The documents of the successful job applicant are releasable as “personnel records” without redactions, and the documents for the unsuccessful candidates who are already employed by the Huntsville School District are releasable as “personnel records” with redactions to their names and information that would reasonably identify that person. But because interview and application documents of non-employee, unsuccessful applicants are neither personnel records nor employee- evaluation or job-performance records, I do not have authority to review the custodian’s decision concerning those documents.

1
Also submitted with these documents is one page that appears to be the back side of one of the other pages provided. But the font is faint and illegible—and thus I am unable to opine on whether the release of this particular page is consistent with the FOIA. 2 Because I have not been provided information concerning the successful candidate or whether the unsuccessful candidates were or are employees of the Huntsville School District, I cannot opinion about whether the documents of specific candidates are releasable under the FOIA. Instead, I provide the applicable law that the custodian must apply for the type of applicant.

323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201

Marshall S. Ney
Friday, Eldredge & Clark, LLP
Opinion No. 2024-096
Page 2

DISCUSSION

1. General rules. A document must be released 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 FOIA. 3 Second, the requested document must constitute a public record. 4 Third, no exemptions allow the document to be withheld. 5

The first two elements appear to be met here. The request was made to the Huntsville School District, which is a public entity subject to the FOIA. 6 And the records at issue appear to be public records. 7 Because these records are held by a public entity, they are presumed to be public records, 8 although that presumption is rebuttable. 9 I have no information, however, to suggest that the presumption can be rebutted, so I will turn to whether any exemptions prevent the documents’ release.

For purposes of the FOIA, employees’ personnel files 10 normally contain two distinct groups of records: “personnel records” and “employee-evaluation or job-performance records.” The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a record meets the definition of either a “personnel record” or an “employee-evaluation

3
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
4
Id.
5
Id.
6
All public entities, including public schools and school districts are subject to the FOIA open-records and open- meetings requirements. See A.C.A. §§ 25-19-103(7)(A) (defining public records to include certain records), 25-19- 106(a) (including “school districts” as public entities subject to the FOIA open-meeting requirements); Ark. Att’y Gen. Op. 2009-060 (opining that “[a]ll public entities…are subject to the FOIA”). 7 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 that constitute a record of the performance or lack of performance of official functions … carried out by a public official or employee.” A.C.A. § 25-19-103(7)(A). 8 Id.
9
See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.”’ (quoting Ark. Att’y Gen. Op. 2005-095)). 10 “Personnel files” are not referenced in the FOIA but typically includes the following documents: 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. Ark. Att’y Gen. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017).

Marshall S. Ney
Friday, Eldredge & Clark, LLP
Opinion No. 2024-096
Page 3

or job-performance record” and then apply the appropriate test for that record to determine whether the record should be released under the FOIA.

2. Successful applicant. This office has consistently opined that the successful job applicant’s
   name, identifying characteristics, interview scores, and applications qualify as “personnel records” under the FOIA. 11 The “Candidate Input Forms”—similar to interview notes and scores—are best classified as personnel records. Thus, those forms for the successful applicant must be disclosed as “personnel records” unless doing so “constitutes 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. In Young v. Rice, the Court applied a balancing test that weighs the public’s interest in accessing the records against the individual’s interest in keeping them private. 12 The balancing test, which takes place with a thumb on the scale in favor of disclosure, has two steps. 13

First, the custodian must assess whether the information contained in the requested record is of such a personal or intimate nature that it gives rise to a greater than minimal privacy interest. 14 If the privacy interest is minimal, then disclosure is required. Second, if the information gives rise to a greater than minimal privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public’s interest in disclosure. 15

Applying this test to a successful applicant’s documents, this office has concluded that “the balance weighs in favor of release.” 16 Thus, the custodian’s decision to disclose the successful applicant’s “Candidate Input Forms” is consistent with the FOIA.

3. Unsuccessful applicants. Because only “personnel” can have personnel records or employee-
   evaluations under the FOIA, this office has often opined that the job application, interview scores, and related application documents of those who were unsuccessful job candidates do not qualify as personnel records unless that person is already an employee of the employer. 17 Nor can the

11
Ark. Att’y Gen. Ops. 2014-127, 2012-146, 2009-156, 2009-096, 2009-032, 2005-086, 2003-015, 98-101; see also Ark. Att’y Gen. Op. 96-142 (noting that interview notes were typically personnel records). 12 308 Ark. 593, 826 S.W.2d 252 (1992).
13
Watkins et al., supra note 11, at 208.
14
Young, 308 Ark. at 598, 826 S.W.2d at 255.
15
Id.
16
See Ark. Att’y Gen. Ops. 2014-127, 2012-146; see also Ark. Att’y Gen. Ops. 2012-115, 2008-039, 2006-044, 2005- 086. 17 See Ark. Att’y Gen. Ops. 2024-077, 2019-058, 2018-011, 2014-127, 98-102, 90-248, 87-070. Other Attorney General opinions have treated as open the question of whether the documents of unsuccessful applicants are personnel

Marshall S. Ney
Friday, Eldredge & Clark, LLP
Opinion No. 2024-096
Page 4

documents of an unsuccessful applicant be an employee-evaluation or job-performance record because he or she would not be an “employee” for purposes of that exemption. 18

But a Candidate Input Form of an unsuccessful applicant who is already the Huntsville School District’s employee is best classified as a “personnel record.” 19 The analysis under the test for release, however, is different than the analysis for the successful applicant. 20 Rather, this office has opined that “the public’s interest is generally satisfied by redacting” the unsuccessful internal applicant’s name before releasing certain job application and interview documents. 21 If the unsuccessful internal applicant could reasonably be identified by information contained in the document, then that information should also be redacted. 22

The custodian will need to review the three unsuccessful applicants to determine whether any were already employed by the Huntsville School District. If any were, then the “Candidate Input Forms” for those individuals are releasable as personnel records, subject to the redactions discussed above. For unsuccessful applicants that were not already employed by the Huntsville School District, I lack the authority under A.C.A. § 25-19-105(c)(3)(B)(i) to review the custodian’s decision because those documents are neither personnel records nor employee-evaluation or job-performance records. 23 When there are reasonable doubts about a FOIA-exemption’s meaning or application, the custodian must narrowly construe FOIA-exemptions to exempt the fewest documents. 24

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

records. See Ark. Att’y Gen. Ops. 2008-039, 2005-004, 99-002. But see John J. Watkins et al., The Arkansas Freedom of Information Act 201–202 (6th ed. 2017) (disagreeing and arguing that personnel records “includes documents pertaining to job applicants, whether or not they are ultimately hired,” noting that two State trial courts are divided on that question). 18 See A.C.A. § 25-19-105(c)(1); Ark. Att’y Gen. Op. 2024-077.
19
See Ark. Att’y Gen. Ops. 2024-077, 2014-127, 2012-146, 2008-039.
20
See Ark. Att’y Gen. Ops. 2014-127, 2012-146, 2008-039.
21
Ark. Att’y Gen. Ops. 2014-127, 2012-146
22
Ark. Att’y Gen. Ops. 2024-127, 2012-146, 2008-039.
23
Ark. Att’y Gen. Op. 2024-077. Of course, even if no exemption applies, public records would still be releasable under the FOIA. Ark. Att’y Gen. Ops. 2009-156, 90-248. 24 Ark. Att’y Gen. Ops. 2016-004, 2015-057; see also Young, 308 Ark. at 596, 826 S.W.2d at 254.