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“West, WESTLAW through end of 2002 Regular Session). South Carolina Available — but limited. South Carolina’s Freedom of Information Act requires that the job application materials of the top three finalists for a position be made available. Application materials for other applicants nee…”
The following states have enacted laws or issued court opinions that provide some indication regarding the availability of information related to searches for top-level executives at public schools or universities. Because state laws require government records and meetings to be open absent a specific exemption, information about executive searches in unlisted states should presumably be available.
May be available. Where a search committee can make “reduction decisions,” case law suggests that they will be subject to state freedom of information laws. The Birmingham News Co. v. Bartlett, No. CV 88 504 403 MC, at 13 (Ala. 10 Dist. Cir. Ct. Eq. Nov. 15, 1988) (A presidential search committee at Univ. of Alabama that could not make “reduction decisions” was not subject to state freedom of information laws.).
Available. Arizona Bd. of Regents v. Phoenix Newspapers, 806 P.2d 348, 354 (Ariz. 1991) (Arizona State University Presidential Search Committee must disclose disclose names and resumes of final candidates.)
Available — but limited. Colorado’s open records law exempts from disclosure the names of candidates who are not finalists, unless there are six or fewer applicants, in which case all are considered finalists whose names must be released. COLO. REV. STAT. ANN. Sec. 24-72-204 (3)(a)(XI)(A) (West, WESTLAW through end of the 2003 First Regular Session of the 64th General Assembly (2003)).
Not available. Connecticut’s Freedom of Information Act exempts “any record of a personnel search committee which, because of name or other identifying information, would reveal the identity of an executive level employment candidate without the consent of such candidate.” CONN. GEN. STAT. ANN. Sec. 1-213(b)(2) (West, WESTLAW through 2003 Jan. Reg. Sess., June 30 Sp. Sess. and Sept. 8 Sp. Sess.)
Available. Lexington Herald-Leader v. Univ. of Ky., 732 S.W.2d 884 (Ky. 1987) (holding that a presidential search committee at Univ. of Kentucky was subject to open meetings act).
Available. Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (A “search and screen committee” for law school dean was covered by state freedom of information laws).
Not available. After a 1989 decision ruling that the records of a university president search committee were open, Bd. of Regents of Univ. System of Ga. v. Atlanta Journal, 378 S.E.2d 305, 307 (Ga. 1989), Georgia lawmakers amended the law to exclude information relating to the specific identity of job candidates. GA. CODE. ANN. Sec. 50-18-72(a)(7) (West, WESTLAW through end of the 2003 Regular Session).
Partially available. Hawaii law includes application materials as among those records that may contain “private” information. However, the law also includes a list of information in such records that would not be “private” and may be released. It includes: name, job title, business address and phone number, education and training background and previous work experience. HAW. REV. STAT. Sec. 92(F)-14(b)(4); 92(F)-12(a)(14) (West, WESTLAW through 2002 Regular Session of the Twenty-First Legislature).
Partially available. Idaho law does not limit the release of the following information in an applicant’s file: employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. (The statute does not mention “name,” but presumably it would also be available.) In order to release any other information in the applicant’s file, the applicant must provide written consent. IDAHO CODE Sec. 9-340 (C)(1) (West, WESTLAW through the 2003 Session).
Probably not available. Illinois’ open records law includes a broad exemption for “personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions….” 5 ILL. COMP. STAT. 140/7 (1)(b)(ii) (West, WESTLAW through P.A. 93-600, of the 2003 Reg. Sess.).
Partially available. Indiana law does not limit — and presumptively requires — the release of the following information in an applicant’s file: “name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience….” IND. CODE ANN. Sec. 5-14-3-4(b)(8) (West, WESTLAW through End of 2003 1st Regular Sess.).
Unclear. Iowa law allows meetings related to the hiring of an individual to be closed “when necessary to prevent needless and irreparable injury to that individual’s reputation.” IOWA CODE ANN. Sec. 22.7 (West, WESTLAW through Chapter 35 of the 2003 Regular Session). This provision has not been tested in the context of a top-level executive search for a school administrator. The Iowa open records law orients its application toward material produced by the government, so applications submitted by job candidates and simply held by a search committee may not be subject to disclosure. However, at least one court has made it clear that search records held by private entities were subject to the same test for release as they were when maintained by public entities, as long as the government paid the private firm to do so. Des Moines Register v. State Bd. of Regents, No. 88-52163 (Iowa Dist. Ct. Polk County, Feb. 19, 1992).
Partially available. While the language is not as clear as one would hope, Kansas law appears to require the release of the following information from application material: names, positions, salaries and lengths of service of employment. KAN. STAT. ANN. Sec. 45-221 (a)(4) (West, WESTLAW through the 2002 Regular Session).
Not available. Maine law includes a very broad exemption that prohibits the disclosure of “applications, resumes, letters and notes of reference, working papers, research materials, records, examinations and any other documents or records and the information they contain, solicited or prepared either by the applicant or the State for use in the examination or evaluation of applicants for positions as state employees.” ME. REV. STAT. ANN. tit. 5 Sec. 7070 (West, WESTLAW through 2003 First Special Session of the 121st Legislature).
Not available. Both Maryland’s open records and open meetings laws contain broad exemptions regarding applications for public employment. MD. ANN. CODE Secs. 10-508(a)(1)(i); 10-616 (i) (West, WESTLAW through end of 2003 Regular Session).
Not available. There have been several court decisions in Michigan. After one court found that University of Michigan Presidential Selection Committee was a public body subject to state open meetings and open records law, Booth Newspapers, Inc. v. Bd. of Regents of the Univ. of Mich., 507 N.W.2d 422 (Mich. 1993), state lawmakers amended the law to exempt such information. MICH. COMP. LAWS ANN. Sec. 15-243 (West, WESTLAW through PA2003, No. 202). More recent court decisions make clear that such information is now probably unavailable in Michigan. Federated Publications, Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491 (Mich. 1999) (A presidential search committee at Michigan State University did not violate open meetings law by conducting closed door sessions.); Great Lakes Media, Inc. v. Oakland Univ. Bd. of Trs., 1997 Mich. App. LEXIS 555 (Mich. Ct. App. Feb. 7, 1997) (A presidential search committee for Oakland University Board of Trustees was not required to comply with the open meetings act.).
Available. A state appellate court ruled in 2003 that the Univ. of Minnesota Board of Regents violated the state open meetings act when it interviewed the candidates for its new president behind closed doors. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 667 N.W.2d 447 (Minn. Ct. App. 2003), review granted (Oct. 21, 2003). As of January 2004, that decision is currently on appeal to the state supreme court. MINN. STAT. ANN. Sec. 13.43 (West, WESTLAW through End of 2003 1st Sp. Sess.).
Not available. State law contains a broad exemption for “applications for employment in the possession of a public body” and “letters of recommendation in the possession of a public body…respecting any application for employment.” MISS. CODE ANN. Sec. 25-1-100 (1) (West, WESTLAW through End of 2003 Regular Session).
Partial information may be available. Missouri law allows for the closure of records pertaining to: “employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries and lengths of service of officers and employees of public agencies once they are employed as such.” Unfortunately, the language of Missouri’s law leaves it unclear whether the law allows for the release of the name of an applicant or only an existing employee. It can be argued that the phrase “once they are employed as such” only applies to information related to an existing employee’s length of service MO. ANN. STAT. Sec. 610.021 (13) (West, WESTLAW through the End of the First Regular and Second Extraordinary Sessions of the 92nd General Assembly (2003)).
Available — but limited. Nebraska law exempts applications, resumes, reference letters and school transcripts of applicants for employment by a public body up until the point at which they become a finalist for the position and accept an interview. At that point, the above job application materials should become public. NEB. REV. STAT. Sec. 84-712.05(14) (West, WESTLAW through First Regular Session of the 98th Legislature (2003)). While an appeals court did allow for the appointment of an interim university president at a closed emergency meeting, during which the current president resigned, the court suggested that such closed door appointments should be the exception rather than the rule. The court noted that the appointment of the interim president was temporary, intended to fill a void and “incidental” to the primary purpose of the meeting, which was to discuss the existing president’s job performance, a topic that was exempt under the open meetings law. Meyer v. Bd. of Regents of Univ. of Neb., 510 N.W.2d 450, 455-456 (Neb. Ct. App. 1993).
Not available for community college presidents. May be available in other cases. Univ. & Cmty. Coll. Sys. v. Dr Partners, 18 P.3d 1042 (Nev. 2001) (holding that private job interviews for Nevada community college president, held not to be a public official, were permissible).
Available — but limited. Following a district court ruling that forced the Board of Regents of the University of New Mexico to abandon their search for a new president, Gallagher v. Bd. Of Regents, No. CV-90-00387 (2nd Judicial District, New Mexico), state lawmakers amended the open records act to exempt the names of candidates for the chief executive of public institutions of higher education, provided the names of at least five finalists are made public no less than 21 days before the final selection is made by the governing body. N.M. STAT. ANN. Sec. 14-2-1 (a)(7) (West, WESTLAW through the First Session of the 46th Legislature (2003).
Generally not available. “Personnel files of applicants for State employment” are exempted from North Carolina’s open records law. N.C. GEN. STAT. Sec. 126-22 (West, WESTLAW through the 2003 Regular Session). Moreover, interviews for the “initial employment” as a state employee can be conducted during a closed session. A current North Carolina state employee interviewing for an executive position in a state agency (an internal hire) would apparently fall outside this exemption. All final hiring decisions, however, must be made during an open meeting. N.C. GEN. STAT. Sec. 143.11(a)(6) (West, WESTLAW through the 2003 Regular Session).
Information prior to hiring not available. Both the state open records and open meetings laws contain broad exemptions for state job applicants. The open records law exempts “selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation….” OKLA. STAT. ANN. tit. 51 Sec. 24A.7 (West, WESTLAW through end of 2002 Regular Session). Once a person is hired as a public official, his application must be made available. Id. In addition, the open meetings law provides that a closed meeting may be called to discuss “employment, hiring, appointment, promotion, disciplining, or resignation” of a salaried public employee. OKLA. STAT. ANN. tit. 25 ?307(B)(1)) ((West, WESTLAW through end of 2002 Regular Session).
Available — but limited. South Carolina’s Freedom of Information Act requires that the job application materials of the top three finalists for a position be made available. Application materials for other applicants need not be released, although the public body must disclose the total number of applicants considered for a position. S.C. CODE ANN. Sec. 30-4-40(a)(13) (West, WESTLAW through End of 2003 Reg. Sess.). Interviews for the position can probably be conducted in a closed session. S.C. CODE ANN. Sec. 30-4-70(a)(1) (West, WESTLAW through End of 2003 Reg. Sess.).
Not available for college presidents but may be available for other high-ranking positions. After a state court found that the state open records act required a Texas university to disclose the names of several hundred presidential applicants, Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546 (Tex. Ct. App. 1983), state lawmakers amended the law to exclude the names of applicants “for the position of chief executive officer of an institution of higher education.” TEXAS GOV’T CODE ANN Sec. 552.123 (West, WESTLAW through end of 2003 Second Called Session).
Should be available. See Bd. of Educ. v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) (ordering applications for superintendent of Memphis public schools disclosed).
Probably available — but limited. Virginia’s open records law exempts “[c]onfidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting…(ii) an application for employment….” VA. CODE ANN. Sec. 2.2-3705(A)(9) (West, WESTLAW through End of 2003 Regular Session). Presumably, other application material should be available.
Not available. Washington law exempts from disclosure “[a]ll applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant….” WASH. REV. CODE ANN. Sec. 42.17.310(1)(t) (West, WESTLAW current with all 2003 legislation).
Available — but limited. Wisconsin’s open records law requires the disclosure of the names of the “final candidates” for a position. Names of other applicants can be withheld. “Final candidate” is defined as “each applicant for a position who is seriously considered for appointment or whose name is certified for appointment and whose name is submitted for final consideration to an authority for appointment to any state position, except a position in the classified service, or to any local public office.” By definition, “final candidate” includes the top 5 candidates for an office or position. WIS. STAT. ANN. Sec. 19.36(7) (West, WESTLAW through 2003 Act 55, published 9/4/03).
Not available. Legislation passed in 2013 states that applications for the position of president of an institution of higher education are exempt from the state’s public records act. WY. STAT. ANN. Sec. 16-4-203(b)(vii).