Are the application materials and interview scoresheets for candidates in a public school superintendent search subject to public release?
Subject
How Arkansas FOIA treats application and interview records in a public superintendent search: successful applicants, unsuccessful internal applicants, and unsuccessful external applicants.
Plain-English summary
The Huntsville School District ran a search for a new Superintendent. Several candidates were interviewed; one was hired. The interview panelists scored each candidate on "Candidate Input Forms." Then someone filed a FOIA request for "pre-employment evaluation records." The district's counsel, Marshall Ney, asked the AG how to handle release.
AG Tim Griffin's answer breaks the candidates into three buckets, each treated differently.
Bucket one: the successful applicant. Once someone is hired, their application and interview materials are personnel records. Under the Young v. Rice balancing test, the public's interest in knowing who got hired and on what basis outweighs the new hire's privacy interest. Release without redactions is the standard rule. The AG cited a long line of his predecessors' opinions reaching this conclusion (2014-127, 2012-146, 2009-156, 2009-096, 2009-032, 2005-086, 2003-015, 98-101, 96-142). The Candidate Input Forms for the hired applicant must be disclosed.
Bucket two: unsuccessful applicants who are already employed by the district (internal candidates). Their Candidate Input Forms are also personnel records, because they are records pertaining to an employee. But the analysis under Young is different than for the successful applicant. The AG explained that disclosing an internal applicant's information about losing a promotion competition gives rise to a privacy interest, and the public's interest is generally satisfied by redacting the unsuccessful internal applicant's name and any identifying details. So the records come out, but with name and identifying information redacted.
Bucket three: unsuccessful applicants who are not already employed by the district (external candidates). The AG declined jurisdiction. Section 25-19-105(c)(3)(B)(i) authorizes AG review only of "personnel records and employee-evaluation records." External applicants are not "personnel" of the district, so records about them cannot be either category for AG-review purposes. The AG cannot opine on the custodian's decision to release records about external unsuccessful applicants.
That does not mean the records are not releasable; it means the AG-review channel is closed. The general FOIA framework still applies, and external applicant records held by a public entity are presumptively public records under § 25-19-103(7)(A). The custodian must apply the standard FOIA exemption analysis on its own.
The AG noted Watkins's treatise argues that personnel records should include nonemployee applicant records, and that Arkansas trial courts are split. The AG continues to follow the longer line of opinions limiting "personnel" to actual employees.
The opinion ends with a small caveat: the custodian sent in records that the AG could not fully analyze (one page was illegible due to faint font). And the AG could not run the four-part test for the successful applicant's status because not enough information was provided about the hire.
What this means for you
If you are a school district or public agency hiring for a position
The release rules are different for each candidate category, so build your records system around that distinction.
For the successful candidate: assume their full application and interview materials become public when they start work. Tell candidates upfront. Include in offers a notice that "your application materials become subject to FOIA disclosure once you accept this position."
For unsuccessful internal candidates: their materials come out with name redactions. The custodian's job is to scrub identifying information (name, position title that uniquely identifies them, distinctive education or career details). The substance of the interview comes out.
For unsuccessful external candidates: AG review is unavailable. You apply the FOIA framework yourself. In practice, many agencies treat external applicant records as releasable under the general public-records framework, with personal contact information redacted.
If you are a journalist or researcher tracking public hiring
When you request "all candidate materials" for a public hire, expect to get the successful applicant's full file (with personal contact information redacted), redacted records for internal unsuccessful candidates, and the agency's own analysis for external unsuccessful candidates. The AG-review process on objection from a candidate goes through (c)(3)(B)(i), but only employees can use it.
If a custodian denies on the basis that "we don't have AG authority to release," that is wrong. The AG's no-jurisdiction conclusion only addresses AG review, not whether the records are releasable. Push back: the records are public; the AG opinion just confirms the AG won't review the custodian's release decision.
If you are an applicant for a public job
If you get the job: your application materials become public records. Plan for disclosure of resumes, cover letters, interview scores, and reference contact information. Personal contact details (home address, personal phone, personal email) get redacted, but everything else is fair game.
If you don't get the job and you already work for the agency (internal applicant): your records come out with your name redacted. People who know you well may still piece together the identification, but the formal release will not name you.
If you don't get the job and you are external: you cannot use the AG-review channel to block release. Your remedies are direct conversation with the custodian and, if necessary, court action under FOIA. Personal contact information will be redacted in any event.
If you are on a school board or city council that votes on hires
Plan for transparency. The successful candidate's materials come out, including any qualifications questions, references, and interview scores. If your board's process produces written notes during interviews, those notes may be evaluation records (created by the employer to evaluate the candidate post-hire) or personnel records (depending on context). Get counsel before deciding to keep extensive written interview notes.
If you represent a candidate as an attorney
For a successful applicant, advise upfront that the records will be public. There is little to do at the AG-opinion stage to block release, since the public interest balancing weighs strongly toward disclosure for new hires.
For an internal unsuccessful applicant, the redaction-of-identifying-information rule is the practical floor. Make sure the custodian is redacting properly. AG review under (c)(3)(B)(i) is available because the candidate is an employee.
For an external unsuccessful applicant, AG review is closed. Direct conversation with the custodian and, if needed, litigation are the channels. The records may still be releasable under the general FOIA framework, so a court action would have to attack the public-records presumption or invoke a narrowly construed exemption.
Common questions
Q: I just got hired by a school district. Will my application materials be public?
A: Yes, with personal contact information redacted. Your resume, cover letter, references, and any interview scores or notes are personnel records once you start work, and the public interest in knowing how the hire was made consistently outweighs your privacy interest.
Q: I applied for a promotion at my agency and didn't get it. Are my interview records public?
A: They are personnel records but with your name and identifying information redacted. The custodian should scrub the records before release.
Q: I applied for a public job from outside and didn't get it. Are my records public?
A: The AG cannot review the custodian's decision because you are not "personnel" of the agency. The records are still presumptively public under the general FOIA framework, but the agency-side analysis controls. Personal contact information is redacted; the rest depends on the custodian's analysis.
Q: How do I block release of my application materials?
A: For internal employees, request an AG opinion under § 25-19-105(c)(3)(B)(i). For external applicants, you would have to file a court action seeking a declaratory judgment that the records are not subject to FOIA. Both paths face an uphill battle.
Q: What about reference letters?
A: References' names and contact information are typically releasable. The AG cited Op. 2015-016 for the proposition that disclosing references is not a clearly unwarranted invasion of privacy. Reference letters that contain substantive evaluation by the reference may be analyzed differently.
Q: My agency uses a panel that scores each candidate. Are those scores public?
A: Yes, per the AG's reading. Candidate Input Forms (interview scoresheets) are personnel records or evaluation records depending on classification, and for the hired candidate they come out without name redactions; for internal unsuccessful candidates they come out with name redactions.
Q: What about the panel members' names?
A: The opinion does not address that directly. Panel members' deliberation notes might be analyzed as evaluation records of the panel members themselves (acting as employees evaluating others), which could change the analysis. Most agencies disclose panel member names; the legal answer in any specific case depends on the records' content.
Background and statutory framework
Arkansas FOIA divides employee-related records into two mutually exclusive categories: personnel records (§ 25-19-105(b)(12)) and employee-evaluation or job-performance records (§ 25-19-105(c)(1)). Personnel records release under the Young v. Rice balancing test (greater than minimal privacy interest, weighed against public interest, with a thumb on the scale for disclosure). Employee-evaluation records release only when the four-part test in (c)(1) is met.
The "personnel" question. The AG's office has consistently held that "personnel" means actual employees of the agency, not just anyone with records held by the agency. Records about job applicants, witnesses, members of the public, etc. are not personnel records of the responding agency. Watkins's treatise disagrees on policy grounds; Arkansas trial courts are divided. The AG's reading is what controls AG review under (c)(3)(B)(i).
Successful applicant rule. AG opinions back to the 1990s have held that, once hired, an applicant's materials are personnel records and the Young v. Rice balancing tilts toward release. The 2024-096 opinion confirms this. The hired candidate's Candidate Input Forms come out without redactions.
Internal unsuccessful applicant rule. Already-employed candidates who applied for promotions and lost remain "personnel" of the agency. Their interview materials are personnel records, but the Young analysis differs because the privacy interest is higher (an employee may face stigma if losing the promotion is publicized) and the public interest is satisfied by knowing the structure of the search rather than the identity of internal losers. AG opinions 2014-127, 2012-146, 2008-039 redact name and identifying information.
External unsuccessful applicant rule. Not "personnel" of the agency, so AG review is closed. The records are still presumptively public under § 25-19-103(7)(A). The custodian's analysis controls.
The personal contact information carve-out at § 25-19-105(b)(13) applies across all three categories.
Citations and references
Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions)
- A.C.A. § 25-19-103 (definitions, public records)
Cases:
- Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (FOIA three-element test)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test)
- Pulaski County v. Ark. Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption)
Source
Original opinion text
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. You state that one of the
candidates was hired but the others were not. 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.
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. Second, the requested document must constitute a public record. Third, no exemptions
allow the document to be withheld.
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. And the records at issue appear to be public
records. Because these records are held by a public entity, they are presumed to be public records,
although that presumption is rebuttable. 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 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
or job-performance record" and then apply the appropriate test for that record to determine whether
the record should be released under the FOIA.
- 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. 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. The balancing test, which takes place with a thumb on the scale
in favor of disclosure, has two steps.
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. 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.
Applying this test to a successful applicant's documents, this office has concluded that "the balance
weighs in favor of release." Thus, the custodian's decision to disclose the successful applicant's
"Candidate Input Forms" is consistent with the FOIA.
- 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. Nor can the
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.
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." The analysis under the test for
release, however, is different than the analysis for the successful applicant. 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. If the
unsuccessful internal applicant could reasonably be identified by information contained in the
document, then that information should also be redacted.
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. 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.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General