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Over the last few months, we’ve received a lot of questions surrounding Arkansas FOIA laws and documentation requests for local government bodies.
FOIA law is a little-discussed topic with the public and is often difficult to navigate if you don’t know where to look for guidance.
To help with this topic, we have linked the latest edition to the Arkansas Freedom of Information Handbook and select sections to help you better understand your rights as an Arkansas citizen.
Common Questions about Arkansas FOIA law
Q. Who is subject to the FOIA?
A. All governmental entities are subject to the FOIA. And a private entity is subject to the FOIA if it receives public funds and is intertwined with the activities of government.
Q. Who may obtain records?
A. “Any citizen of the State of Arkansas” may inspect, obtain copies of and photograph public records. “Citizen” includes corporations. A requester’s purpose or motive in seeking access to particular records is irrelevant. Nothing in the FOIA restricts the subsequent use of information obtained under the act.
Q. What records are subject to the act?
A. Any record that is “required by law to be kept or [is] otherwise kept and that constitutes a record of the performance or lack of performance of official functions” is a public record. Further, “all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records.” The FOIA covers both records created by an agency and those received from third parties. The physical form of the record is unimportant, as the FOIA applies to “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium.”
Q. Is every record (such as an email) created on a public computer a public record?
A. Not necessarily. It will depend on whether the email reflects the performance or lack of performance of official functions. Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007).
Q. What records are exempt from disclosure?
A. The FOIA exempts numerous records and pieces of information from disclosure. See Ark. Code Ann. § 25-19-105(b) (Supp. 2021). In addition, the FOIA incorporates the confidentiality provisions of other statutes in the Arkansas Code. If a public record does not fall squarely within an exemption, it must be disclosed. Exemptions must be narrowly construed. Unclear or ambiguous exemptions will be interpreted in a manner favoring disclosure. At the same time, the court will balance the interests between disclosure and nondisclosure using a common-sense approach. DF&A v. Pharmacy Assoc., 333 Ark. 451, 970 S.W.2d 217 (1998). If a record contains both exempt and nonexempt information, it must be made available for public inspection with the exempt material deleted or redacted.
Q. How does one request records?
A. Direct the request to the “custodian of the records.” It need not be in writing, though a written request is advisable because it provides a record if litigation becomes necessary. The request must be specific enough for the custodian to locate the records with reasonable effort.
Q. Does the request have to be made in person?
A. No. It can be made in person or by telephone, fax, mail, email or via the internet if the custodian has created an online form for that purpose.
Q. When must the agency make the records available?
A. Generally, records must be made available immediately unless in active use or storage, in which case they must be made available within three working days of the request. Requests for personnel records and employee-evaluation records must be acted upon within 24 hours of the custodian’s receipt of the request. During that same period, the custodian must make all practicable efforts to notify the person making the request and the subject of the records of the custodian’s decision regarding personnel or evaluation records. The custodian, requester, or subject of the records may seek an Attorney General’s opinion on whether the custodian’s decision regarding personnel or evaluation records is consistent with the act.
Q. Is the custodian required to furnish copies of public records?
A. Yes, for a fee, if the custodian has the necessary duplicating equipment.
Q. Is the custodian required to scan paper records into an electronic medium such as a PDF?
A. Yes, if the custodian has the scanning capability.
Q. Is the custodian required to mail the copies?
A. Probably yes, although this is not entirely clear under the act. Op. Att’y Gen. 2008-071.
Q. What fee may be charged?
A. Copy charges cannot exceed actual reproduction costs, and the custodian must provide an itemized breakdown of the charges. The charges can include actual costs of mailing or faxing or emailing the records.
Q. Can the custodian require that the fee be paid in advance?
A. Yes, if the estimated copy fee exceeds $25.00.
Q. Can the custodian waive the fee?
A. Yes, if it is determined that the records are requested primarily for noncommercial purposes and that the waiver is in the public interest.
Q. Who may attend public meetings?
A. Because meetings “shall be public,” any person may attend.
Q. What is a meeting?
A. Any meeting, formal or informal, regular or special, of a governing body including sub-bodies. A quorum of the governing body need not be present for the meeting to be subject to the FOIA. If two members meet informally to discuss past or pending business, that meeting may be subject to the FOIA. This question will turn on the facts of each case.
Q. May private citizens request notification of meeting times of public boards?
A. Yes, as to regular meetings. Notice of emergency or special meetings is only provided to news media that have requested notice.
Q. What meetings are exempt from the FOIA?
A. The FOIA exempts four kinds of meetings from the requirement that the public be allowed to attend. A closed meeting, called an “executive session,” may be held “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” In contrast, an executive session to consider general personnel matters, an across the board pay increase, or the overall performance of employees as a group is not permissible. An executive session may also be held by state licensing boards and commissions “for purposes of preparing examination materials and answers to examination materials,” and for “administering examinations.” Executive sessions may be held by certain water systems and other utility systems to discuss security issues. Executive sessions may also be held by the General Assembly’s Child Maltreatment Investigations Oversight Committee under Ark. Code Ann. § 10-3-3201 et seq.
Q. What is a recommended way to announce an executive session pursuant to Ark. Code Ann. § 25-19-106(c)(1)?
A. After approval of a motion to retire into executive session, the chairman may announce: “This body has voted to retire into executive session to consider the [identify the purpose, i.e., employment, appointment, promotion, demotion, discipline or resignation] of an employee. We will reconvene in public session following this executive session to present and vote on any action arrived at in private.”
Q. When the specific purpose of such an executive session is announced in public, must the individual public officer or employee be named?
Q. Who may attend such an executive session?
A. Only the top administrator in an agency, the employee’s immediate supervisor, the employee in question, and any person being interviewed for the top administrative position in the agency involved. Neither the agency’s attorney nor the employee’s attorney may attend an executive session.
Q. When does the action discussed in an executive session become legal?
A. When the governing body involved ratifies the action with a public vote in open session following the executive session. If no public vote is taken, any decision reached in closed session has no legal effect.
Q. How does one challenge an agency’s action?
A. “Any citizen denied the rights granted to him may appeal immediately from the denial” to an appropriate circuit court, which may issue “orders” to enforce the act.
Q. Are attorney’s fees available?
A. Yes. The court shall award attorney’s fees and other litigation expenses to a plaintiff who, after filing suit, has obtained from the defendant a significant or material portion of the public information he or she requested, and may to a public entity that has substantially prevailed in an FOIA case unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award unjust. However, no fees may be awarded against the State. But a plantiff who substantially prevails against the State may file a claim with the Arkansas State Claims Commission for fees and expenses. Ark. Code Ann. § 25-19- 107(e)(1) and (e)(2).
Q. Is the violation of the FOIA a criminal offense?
A. A person who “negligently violates” the FOIA is guilty of a Class C misdemeanor. Ark. Code Ann. § 25-19-104.
How to Challenge a Meeting About to be Closed
Below is a suggested statement for reporters and citizens to use when a board, commission, or other government entity (including committees thereof) votes to go into executive session. The reporter or citizen should rise and state:
“The Arkansas Freedom of Information Act requires that you state the purpose of the executive session before going into it. I request that you do so at this time.”
The reason given must be for the specific purpose of considering “employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee.” This may not include general discussion about making policies related to these. This must be done in open session.
Anything else violates the Freedom of Information Act, and the reporter or citizen should call somebody’s attention to this point. If the body persists, the reporter should notify his or her supervisor immediately, and the citizen should contact the prosecuting attorney.