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 Arkansas Attorney General may review a school district custodian's decision to release records about a job applicant who is not an employee of the district.

Plain-English summary

Fort Smith Public Schools received a request for application materials for a position that had not been filled. Applicant Tim Harper told the AG that he was not a district employee. The custodian supplied records it intended to release with redactions of home address, phone number, personal email, and the same information for references.

The AG concluded he lacked authority to review the custodian's release decision. A.C.A. § 25-19-105(c)(3)(B)(i) permits AG review of decisions about personnel records and employee-evaluation records. In the AG's words, “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.” Because Harper was not employed by the district, the AG could not opine on the release decision.

The AG said the school district was subject to FOIA and the records appeared to be public records. He had no information suggesting that the presumption of public-record status could be rebutted here. He stopped before deciding whether an exemption allowed the records to be withheld. His opinion therefore does not approve the custodian's redactions or decide what must ultimately be released.

What this means for you

If you applied for a public agency job

If you are not employed by the agency holding your application materials, this opinion says the AG's special review of personnel and evaluation records does not cover the custodian's decision about your records. The opinion does not determine whether a particular part of your application must be disclosed. Ask the custodian what it plans to release and what grounds it identifies for withholding anything.

If you are a school district records custodian

The AG's jurisdiction question comes first: are the requested records personnel or employee-evaluation records of the agency? The AG found that records about this nonemployee applicant were neither. He did not decide whether any FOIA exemption applies, including to the contact details the custodian planned to redact.

If you requested an applicant's records

The AG said the records at issue “appear to be public records” and noted that public-entity records carry a rebuttable presumption of public status. His refusal to review the custodian's decision is not a ruling on whether an exemption allows any part of these records to be withheld.

If you advise an applicant or an agency

Keep the AG's review power separate from the disclosure question. The opinion cites the three conditions for disclosure: a covered entity, a public record, and no applicable exemption. It resolves only the AG's authority to review this custodian's decision, after noting that the first two conditions appeared to be met.

Common questions

Can a nonemployee applicant get AG review of the custodian's release decision?

Under the AG's reading of § 25-19-105(c)(3)(B)(i), no. This review mechanism is limited to decisions involving personnel records or employee-evaluation records, and the AG says records about a person who does not work for the agency are neither.

Did the AG approve the redaction of addresses and phone numbers?

No. The opinion reports the custodian's planned redactions but says, “Before I can address whether any exemptions apply, I must address my statutory authority to review the custodian's decision.” The AG then declined review for lack of authority.

Did the AG decide whether the applicant's materials are public records?

He said they “appear to be public records,” explained the rebuttable presumption for records held by a public entity, and said he had no information suggesting the presumption could be rebutted here. He did not complete the separate exemption analysis.

Does this opinion decide how to handle successful or internal applicants?

No. The applicant in this opinion was not employed by Fort Smith Public Schools and the position had not been filled. The AG did not decide the classification or release of records for successful or internal applicants.

Background and statutory framework

The AG quotes the three disclosure conditions from Harrill & Sutter, PLLC v. Farrar: a request to a FOIA-covered entity, a public record, and no exemption allowing withholding. Footnote 5 cites Pulaski Cnty. v. Ark. Democrat-Gazette, Inc. for the rebuttable presumption of public-record status. A.C.A. § 25-19-105(c)(3) limits the AG's review authority to personnel and employee-evaluation records. Footnotes 7 and 8 cite Op. 2024-096 and earlier AG opinions for the view that “only ‘personnel’ can have personnel records or employee-evaluation[]” records. The treatise view quoted in footnote 7 differs, but the AG applied his prior interpretation here.

Citations

• A.C.A. § 25-19-103(7)(A)
• A.C.A. § 25-19-105(c)(3)(B)(i)
• Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Ark. Att'y Gen. Op. 2024-096

Source

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

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 release, 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).