Can the Arkansas Attorney General review a school district's decision to release records about a job applicant who is not employed by the district?
Subject
Whether the AG has authority to review a public agency's release decision when the records concern a job applicant who is not an employee.
Plain-English summary
Tim Harper applied for a position at Fort Smith Public Schools. Someone filed a FOIA request for "all applications and materials" for that position. The records custodian planned to release the responsive documents with redactions of Harper's home address, phone number, personal email, and reference contact information. As the subject of those records, Harper exercised his statutory right under § 25-19-105(c)(3)(B)(i) to ask the AG for an opinion.
AG Tim Griffin's answer is procedural: he lacks authority to review. Section 25-19-105(c)(3)(B)(i) gives the AG the power to opine only on a custodian's decision to release "personnel records" and "employee-evaluation records." A long line of AG opinions reads "personnel" to mean people who are actually employed by the public agency holding the records. Harper is not employed by Fort Smith Public Schools (the position has not been filled, and he does not work there in any other capacity), so the records about him are neither personnel records nor employee-evaluation records as those terms are used in the FOIA's special review provision.
That does not mean the records are not releasable, just that the AG cannot opine on the custodian's decision. The general FOIA framework (records held by a public entity are presumptively public; exemptions must be narrowly construed) still applies. Harper's remedies, if he wants to block release, run through the Pulaski County rebuttable-presumption analysis or other narrowly-construed FOIA exemptions, in court if necessary, not through the AG.
The AG has held this position consistently. He cited a string of opinions reaching the same conclusion (2024-096, 2024-077, 2019-058, 2018-011, 2014-127, 98-102, 90-248, 87-070). He also acknowledged the academic disagreement: Watkins's leading FOIA treatise argues that "personnel records" should include records of nonemployee applicants. The AG declined to adopt that reading.
What this means for you
If you are a job applicant to an Arkansas public employer
If the position is not filled and you are not already employed by the agency, your application materials are not "personnel records" for AG-review purposes. That means two things. First, you cannot use § 25-19-105(c)(3)(B)(i) to get an AG opinion on the custodian's release decision the way an existing employee can. Second, the AG's silence does not mean the records are not releasable; the general FOIA framework still applies and will likely require disclosure of public records held by the agency.
If you object to release, your channel is direct conversation with the custodian (perhaps your application was mostly drawn from your resume, which you control), or court action. The privacy redaction the custodian already made (home address, personal phone, personal email, reference contact info) is the appropriate practical compromise.
If you are a successful applicant, the analysis flips. Once you start work, your application materials become personnel records. See AG opinion 2024-096 for the full framework on successful vs. unsuccessful applicants and internal vs. external candidates.
If you are a records custodian at an Arkansas public agency
The AG opinion gives you a clean rule for the AG-review channel. If a subject of records requests an AG opinion under (c)(3)(B)(i), check first whether the subject is an employee of your agency. If they are not an employee, the AG will decline jurisdiction. Document the request and your decision and proceed with the FOIA analysis under the general framework.
In practice, you should still apply the full FOIA analysis: is the records request directed to an entity subject to FOIA (yes, your agency); are the records public records (presumptively yes); do any exemptions apply (the (b)(13) personal contact information carve-out clearly applies, and you may have other discrete redactions to make).
If you are a FOIA requester or journalist
This opinion clarifies that the AG-review channel does not block your access when the records concern nonemployees. The custodian's analysis is the operative one, and the records are presumptively public. If a custodian uses the AG's no-jurisdiction conclusion as a reason to delay or deny release, that is a misreading; declining AG review is not the same as denying public access.
If you are a personnel or employment attorney
The AG has now reaffirmed (citing multiple prior opinions back to 1987) that the FOIA's special AG-review channel for personnel records is limited to current or past employees of the responding agency. This forecloses an entire category of AG-opinion practice for nonemployee applicants. If your client wants to block release of their application materials, the play is in court: a declaratory judgment action under FOIA arguing that the records are not "public records" under § 25-19-103(7)(A) (the rebuttable-presumption challenge from Pulaski County) or that some narrowly construed exemption applies.
The Watkins treatise's contrary reading (that "personnel records" should include nonemployee applicants for policy reasons) is not the AG's position and has not been adopted by Arkansas appellate courts. State trial courts are split, per the treatise. There is room for litigation, but not via the AG opinion mechanism.
Common questions
Q: I'm not employed by the agency but they have records about me. Are they public?
A: Records held by a public agency are presumptively public records under § 25-19-103(7)(A). The presumption is rebuttable, but only if the records do not "constitute a record of the performance or lack of performance of official functions." That is a fact-specific test you may have to litigate.
Q: Can I still ask the AG for an opinion?
A: You can ask, but if you are not an employee of the agency, the AG will likely decline to opine on the custodian's release decision. The (c)(3)(B)(i) channel is limited to personnel and employee-evaluation records.
Q: What about my home address, personal phone, and references?
A: The personal contact information exemption at § 25-19-105(b)(13) protects these. The custodian in this case already redacted them, which is consistent with the FOIA. References' names and contact information are slightly different and are typically releasable per other AG opinions; check your specific records.
Q: I was a successful applicant; the position is now filled by me. Are my application materials releasable?
A: Yes, with the standard personnel-records analysis. Once you become an employee, your application materials are personnel records. See AG opinion 2024-096 for the framework.
Q: I was an unsuccessful applicant who is already employed by another department of the same agency. Are my application materials covered?
A: Yes, as personnel records of the agency, with the redaction of identifying information per AG opinion 2024-096. See that opinion for the internal-applicant analysis.
Q: How do I block release if the AG won't review?
A: Court action. You would file in circuit court for a declaratory judgment that the records are not subject to disclosure. The agency and the requester are typically parties. The standard for blocking release is high (FOIA exemptions are narrowly construed, the burden is on the party resisting disclosure), but it is the available channel.
Background and statutory framework
The Arkansas FOIA at § 25-19-101 et seq. is broadly read to favor disclosure of public records. The special AG-review channel at § 25-19-105(c)(3) is a narrow procedural mechanism: when a custodian receives a FOIA request for personnel or evaluation records, the subject of those records or the custodian can request an AG opinion on whether the planned disclosure or denial is consistent with the FOIA.
The AG's position, repeated since at least 1987, is that this special channel is limited to records concerning employees of the responding agency. The reasoning: only "personnel" can have personnel records or employee-evaluation records. People who are not personnel of the agency cannot generate personnel records of the agency. Records about a nonemployee applicant are records about an outside party, not records about an employee.
Watkins's treatise (The Arkansas Freedom of Information Act, 6th ed. 2017) takes a contrary policy view, arguing that nonemployee applicant records should be classified as personnel records. The treatise notes Arkansas trial courts are divided. Arkansas appellate courts have not squarely addressed the question, and the AG's office has consistently declined to follow the Watkins reading.
The general FOIA framework still applies regardless of AG-review jurisdiction. Three elements: (1) request directed to an entity subject to FOIA, (2) requested document is a public record, (3) no exemptions allow withholding. Harrill & Sutter v. Farrar, 2012 Ark. 180, sets out the three-element test. Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435 (2007), explains the rebuttable presumption.
The personal contact information carve-out at § 25-19-105(b)(13) protects home addresses, personal phones, and personal emails of certain public employees. The custodian in this case applied that exemption to Harper's records, and the AG opinion does not disturb that.
Citations and references
Statutes:
- A.C.A. § 25-19-103 (definitions)
- A.C.A. § 25-19-105 (exemptions and AG review)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (three-element FOIA test)
- Pulaski County v. Ark. Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public record status)
Source
Original opinion text
Opinion No. 2025-006
January 21, 2025
Tim Harper
Via email only: [email protected]
Dear Mr. Harper:
You have requested an opinion regarding the Arkansas Freedom of Information Act (FOIA)
because certain records with your name and information have been requested. Your request is
based on A.C.A. § 25-19-105(c)(3)(B)(i).
The Fort Smith Public Schools received a FOIA request "for all applications and materials for" a
certain position of employment. Your correspondence indicates that (1) you are not an employee
of the Fort Smith Public Schools, (2) the position has not been filled, and (3) you are unaware if
you are still being considered for the position.
The custodian has provided me with the records he intends to disclose, which include redactions to
"your home address, phone number, personal email, and the same information for any references
that were listed."
RESPONSE
My authority under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to opining on a custodian's decision
to release personnel records and employee-evaluation records. But records about a person who is
not employed by the public entity to which the request was directed are not personnel records or
employee-evaluation records. Thus, I do not have authority to opine on the custodian's decisions.
DISCUSSION
A document must be disclosed in response to a FOIA request if (1) the request was directed to an
entity subject to the FOIA, (2) the requested document is a public record, and (3) no exemptions
allow the document to be withheld.1
1 Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
Tim Harper
Opinion No. 2025-006
Page 2
The first two elements appear to be met. The request was made to the Fort Smith Public Schools—
a public entity subject to the FOIA.2 And the records at issue appear to be public records.3 Because
these records are held by a public entity, they are presumed to be public records,4 but that
presumption is rebuttable.5 I have no information to suggest that the presumption can be rebutted
here. This leaves the third element—whether an exemption allows the records to be withheld.
Before I can address whether any exemptions apply, I must address my statutory authority to
review the custodian's decision. My authority under A.C.A. § 25-19-105(c)(3) is limited to
reviewing personnel records and employee-evaluations records.6 But "only 'personnel' can have
personnel records or employee-evaluation[]" records.7 Thus, if a public entity has records about a
nonemployee, then those records are not personnel records or employee-evaluations records.8
Because you are not an employee of the Fort Smith Public Schools, their records about you are not
personnel records or employee-evaluation records. And because the records that the custodian
intends to release are not personnel records or employee-evaluation records, I do not have statutory
authority to opine on the custodian's decision to release records related to you.
Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
2 See, e.g., Ark. Att'y Gen. Ops. 2024-071, 2004-225.
3 "Public records" are "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).
4 Id.
5 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)).
6 A.C.A. § 25-91-105(c)(3)(A)–(B) (authorizing the Attorney General to "issue an opinion stating whether the
[custodian's] decision"—in response to "a request for the examination or copying of personnel or evaluation
records"—"is consistent with" the FOIA); see also Ark. Att'y Gen. Ops. 2024-096, 2024-077, 2019-058, 2018-011.
7 Ark. Att'y Gen. Op. 2024-096 (citing Ark. Att'y Gen. Ops. 2024-077, 2019-058, 2018-011, 2014-127, 98-102, 90-
248, 87-070). But see John J. Watkins et al., The Arkansas Freedom of Information Act 201–02 (6th ed. 2017)
(arguing from a policy perspective that "personal records" should include records of nonemployee applicants).
8 Ark. Att'y Gen. Op. 2024-096 (citing Ark. Att'y Gen. Ops. 2024-077, 2019-058, 2018-011, 2014-127, 98-102, 90-
248, 87-070).