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									Freedom of Information Act

Arkansas Attorney General’s Office
Dustin McDaniel, Attorney General
Guides to Interpretation
Freedom of Information Handbook (12th
Watkins, Arkansas Freedom of
 Information Act (4th Edition, 2004)
Attorney General’s Website
History of the FOIA
 Arkansas Freedom of Information Act
 initially adopted in 1967
  – Codified at Arkansas Code Annotated 25-19-
    101 et seq.
  – Covers two broad areas:
     Public meetings
     Public records
        Amended in 2001 to specifically include ―Electronic or
         Computer-Based Information or data compilations in any
Legislative Intent
 A.C.A. 25-19-102
   – To insure that electors or
     their representatives are
     fully advised of the
     activities and decisions of
     their public officials
   – Case law sets forth liberal
     interpretation rule (Laman
     v. McCord, 245 Ark. 401
   – Exemptions to be narrowly
     construed (Bryant v. Mars,
     309 Ark. 480 (1992); Orsini
     v. State, 340 Ark. 665
Scope of the FOIA
 Requires most meetings of certain governmental bodies to
  be open to the public
 Allows the public to inspect and receive copies of public
  records unless the law makes an exception for them
 Can apply to private organizations if they receive public
   – Citizen participation at meetings (just attendance)
   – Creation of new records in response to questions
   – Any particular time period for record retention
Private Entities
                    Can be subject to the Act if:
                      1) In receipt of direct public
                         funding (whole or partial
                         fundng); and
                      2) Activities are of public concern
                         and intertwined with those of
                         the government

                          - Indirect public support not
                          sufficient to trigger Act
                          - Partial funding of discrete
                          activity requires openness only
                          as to activity funded
            What meetings must be
             – A.C.A. 25-19-106(a)
               ―All meetings, formal or
               informal, special or regular‖
               of the ―governing bodies‖ of
               cities, counties, school
               districts, state entities, and
               some private entities

             – Act is triggered even if no
               official action is taken.
Open Public Meetings (Application)
A.C.A. 25-19-106(a)

 Only applies to Governing          Advisory committees composed
  Bodies with decision-making         partially of board members
  power                               might be covered (Op. 2000-
 Subcommittees of governing          260)
  bodies are covered, as are any
                                     A specific statute may govern
  other committees with
  delegated power to decide (Ark.     particular meetings (Op. 2002-
  Gazette Co. v. Pickens, 258         100)
  Ark. 69 (1975) & Op. 2002-
 Does not apply to staff
  meetings (Nat’l. Park Med. Ctr.
  v. Ark. DHS, 322 Ark. 595
  (1995) or to advisory bodies
  unless de facto governing body
  (but records are subject)
Open Public Meetings (Notice)
A.C.A. 25-19-106(b)(1)
 The time and place of
   each regular meeting shall
   be furnished to anyone
   who requests the
    – No one entitled to notice
      unless requested (Elmore v.
      Burke, 337 Ark. 235 (1999)
    – No particular form of notice
      required, but must be
      calculated to give actual
      notice (Op. 96-074)
Open Public Meetings (Notice, con’t)
 A.C.A. 25-19-106(b)(2)
  – In the event of emergency or special meetings, the
    person calling the meeting shall notify the
    representatives of the newspapers, radio stations, and
    television stations, if any, located in the county in
    which the meeting is to be held and any news media
    located elsewhere which cover regular meetings of the
    governing body and which have requested to be so
    notified of emergency or special meetings, of the time,
    place, and date of the meeting. Notification shall be
    made at least two (2) hours before the meeting takes
    place in order that the public shall have representatives
    at the meeting.
How many members make a
 Quorum not required (El Dorado Mayor v. El Dorado
  Broadcasting, 260 Ark. 821 (1976)
 3 members to discuss government business, must
 2 members can be a meeting depending on the facts --
  routine discussions not covered (Op. 96-067);
  ―polling‖ or pre-meeting conferencing before a vote is
  covered Rehab Hosp. Services Corp. v. Delta-Hills
  Health Systems Agency (1985); Harris v. Fort Smith
 Telephone conferences are permissible if proper
  procedures are followed (Rehab Hospital)
Social Gatherings
                 Considered a
                     – Not if any
                       discussion of
                       business is
                       incidental and
                       intermittent (Op.95-
Exceptions to Open Meetings
(Private Meetings)
 Executive Sessions for certain
   personnel issues
    – Only for the purpose of
      considering employment,
      appointment, promotion,
      demotion, disciplining or
      resignation of a public officer
      or employee
 Executive Sessions of State
  Boards to prepare licensure test
  questions and administer the
  tests. (2001 Law)
 Executive sessions for purposes
  of considering, evaluating or
  discussing matters pertaining to
  public water system security
  (2003 Law).
Executive Sessions, Con’t.
 Notice requirements still apply
 Must announce specific purpose before going in
 Who May be Present?
  – Only the governing body and the top administrator,
    immediate supervisor, and employee may be present in
    executive session; or person being interviewed for top
    administrative position.
 Must vote in public afterward or action is void
 Other specific state laws may allow private
  meetings (Op. 2001-040 regarding the specificity
Public Records
 Definition of Public
 A.C.A. 25-19-103(1)
   – ―writings, recorded sounds,
     films, tapes, electronic or
     computer-based information or
     data compilations in any
     medium‖ which ―constitute a
     record of the performance or
     lack of performance of official

    Excludes software acquired by
      purchase, lease or license.
Access to Public Records
A.C.A. 25-19-105
                 Unless exempt ― . . .
                  All public records
                  shall be open to
                  inspection and
                  copying by any citizen
                  during regular
                  business hours….‖
 Covers ―records‖ not ―information‖
 An agency need not create new records to comply
 If part public and part exempt, redact exempt
  material and provide the rest
 Covers computer records
   – Computer hardware or software purchased after July 1,
     2001, shall not impede public access to records in
     electronic form.
FOIA Requests
 Only ―citizens‖ may request
  – Some inmate access denied (2003 Law)
 Requests may be made in person, by
  telephone, mail, facsimile, electronic mail,
  or any other electronic means provided by
  the custodian.
 The request shall be sufficiently specific to
  enable the custodian to locate the records
  with reasonable effort.
FOIA Compliance
 Requires immediate access unless records are in
  ―active use or storage.‖
 If in active use or storage, custodian must certify
  that fact in writing and set time within 3 working
  days to provide the records.
 An agency that is not the custodian of requested
  records should identify the proper custodian, if
  known or readily ascertainable.

 A citizen may . . . ―inspect, copy or receive
  copies of public records.‖
COPIES (Con’t)

 ―Upon request and payment of a fee, . . . the
  custodian shall furnish copies of public
  records if the custodian has the necessary
  duplicating equipment.‖
Copy Charges
 Any fee for copies may
  not exceed the actual
  costs of reproduction
 Custodian may charge
  actual costs of mailing or
  transmitting record by
  electronic means
 Fee may not include
  existing agency personnel
  time for searching,
  retrieving, reviewing or
  copying records
Copy Charges (con’t)
 If the estimated fee exceeds $25, the
  custodian may require the requester to pay
  that fee in advance.
 Copies may be furnished without charge or
  at reduced cost if the custodian determines
  that the request is primarily noncommercial
  or that fee reduction is in the public interest.
 The custodian shall provide an itemized
  breakdown of charges.
 ―No request to inspect, copy, or obtain
  copies of public records shall be denied on
  the ground that information exempt from
  disclosure is commingled with nonexempt
 ―Any reasonably segregable portion of a
  record shall be provided after deletion of the
  exempt information.‖
―The amount of information deleted shall
 be indicated on the released portion of
 the record and, if technically feasible, at
 the place in the record where the deletion
 was made.‖
Custodian shall bear the cost of
 separating exempt from nonexempt

 Computer hardware or software purchased after
  July 1, 2001, shall be in full compliance with the
  requirements of this section and shall not impede
  access to records in electronic form.
    Exemptions to Access in the FOIA
 State Income Tax Records
     – Individual and Corporate Income Tax Returns
     – Any State Income Tax Record
     – Employee Payroll Withholding
   Medical Records
     – Records containing information relating to the treatment or
       diagnosis of a medical condition
   Adoption Records
   Education Records, as defined in federal law, ―Family and Educational
    Right to Privacy Act,‖ 20 USC § 1232g.
   Certain Historical Preservation & Archeological Survey Records
   Grand Jury minutes
   Unpublished drafts of judicial & quasi-judicial opinions
   Ongoing investigations by law enforcement
Exemptions to Access (Continued)
 Unpublished memoranda, working papers & correspondence of certain
    state officials
     – The Governor, members of the General Assembly, Supreme Court
        Justices, Court of Appeals Judges, and the Attorney General
   Documents protected by order or rule of court
   Files that would give advantage to competitors or bidders
   Certain AEDC Records
   Identity of undercover officers
     – Records of the number of undercover officers and agency lists are
        not exempt from this chapter.
   Records containing measures, procedures, instructions, or related data
    used to cause a computer … to perform security functions, including
    but not limited to, passwords, personal identification numbers … and
    other means of preventing access to computers … or any data residing
Exemptions to Access (Continued)
 Non-elected state, county and municipal employees’ home addresses
    are exempt.
   Home addresses of non-covered employees may be exempt under the
    25-19-105(b)(12) exemption for personnel records. See Stilley v.
    McBride, 332 Ark. 306 (1998).
   Notwithstanding the exemption, the custodian shall ―verify‖:
     – An employee’s city or county of residence
     – Or ―address of record‖ upon request.
   Examinations for Licensure
     – State agency materials, information, examinations, and answers …
        utilized by boards and commissions for … testing applicants for
   Military Discharge Records (DD Form 214)
     – A.C.A. 25-19-105 exempts ―Military Service discharge records or
        DD Form 214 for veterans discharged from service less than
        seventy (70) years from the current date and filed with the county
        recorder as provided under 14-2-102.‖
Other Exemptions to Access
 Reports, analyses, investigations, and any other records containing
  information that, if disclosed, might jeopardize or compromise efforts
  to secure and protect the public water system. A.C.A. 25-19-105
  (16)(A) & (B).
   – A.C.A. 25-19-103(6)(A) defines ―Public Water System‖ as all
      ―facilities comprising a system for collection, treatment, and
      delivery of water to the general public, including, but not limited
      to, reservoirs, pipelines, reclamation facilities, processing facilities,
      and distribution facilities.‖
 The ―Homeland Security Information Act‖ shields threat assessments,
  plans, operations policies or procedures, and training developed or
  maintained by an ―emergency services agency‖ for the purpose of
  preventing or responding to a ―catastrophe‖ or use of ―weapons of
  mass destruction‖ unless the disclosure is determined to be in the best
  interest by the head of the agency. A.C.A. 12-75-subch. 1n.
   – This Act contains a Sunset Clause and expires on July 1, 2005.
Personnel Records
 Are generally OPEN, except ―to the extent disclosure
  would constitute a clearly unwarranted invasion of
 Exemption applies to both current and former
   – What is clearly unwarranted?
   – Arkansas Supreme Court applies a balancing test.
 Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
 Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125
Commonly Exempted Items
 Social Security numbers
 Medical information
 Insurance, pension & benefit information
 Garnishments
 Educational transcripts
 Unlisted phone numbers and addresses
 Anything else which would cause a clearly
  unwarranted invasion of privacy
Common Items Open to Inspection

 Name                  Educational
 Date of birth          background
 Salary information    Qualifications
 Contracts             Leave Records
 Employment            Change of status
  applications           records
 Resumes
Employee Evaluation or Job
Performance Records
 Includes formal evaluations, or any document
  created by or at behest of a supervisor to detail job
 Are generally CLOSED, unless there has been a
   – Final administrative resolution of
      Any suspension or termination proceeding, where the
      Records form a basis for the decision to suspend or
       terminate and there is a
      Compelling public interest in disclosure.
Personnel/Evaluation Records
 Each employee has a
  right to see his/her
  own personnel or
  evaluation records
  despite these
 Notice Requirements
  – Notify employee and requester within 24 hours
    of the agency decision
  – Overnight mail notice is required if other notice
  – The requester, custodian or subject may request
    an opinion from the Attorney General
  – Redact any exempt information and provide the
Exemptions Not Contained in the FOIA
 Exemptions in other
  State Statutes
 Exemptions in federal
 Constitutional right to
A.C.A. 25-19-109
Special Requests for Electronic Information
 A custodian has the
  discretion to
  summarize, compile,
  or tailor electronic
  data in a particular
  medium and may
  agree to provide data
  in an electronic format
  to which it is not
  readily convertible
Special Electronic Requests (con’t)

 Where the cost and
 time involved in
 complying with the
 request is relatively
 minimal, custodians
 should agree to
 provide the data as
Special Electronic Requests (con’t)
 If the custodian agrees to a
  non-standard request, the
  custodian may charge the
  actual, verifiable costs of
  personnel time exceeding
  two hours associated with
  the tasks, in addition to
  copying costs.

The charge for personnel time shall not exceed the salary
of the lowest paid employee who, in the discretion of the
custodian, has the necessary training to respond to the
Special Electronic Requests (con’t)

                   The custodian
                    shall provide an
                    breakdown of
A.C.A. 25-19-108
Information for Public Guidance
 Each state agency, board and commission shall
 prepare and make available:
 List and general          Description of
  description of its          organization, methods
  records and computer        of operation, locations
  databases.                  of central and field
                              offices, telephone
 Regulations, rules of       numbers, internet
  procedure, statements       addresses and methods
  of policy in the            by which the public
  discharge of its duties.    may obtain access to
                              public records.
Public Guidance (con’t)
                 All documents
                  comprising an
                  adjudication decision,
                  in a contested matter,
                  except parts of the
                  decision that are
                  expressly confidential
                  under state or federal
Public Guidance (con’t)
 All records that
  have been released
  pursuant to an
  FOIA request and
  are likely to be the
  subject of future
Public Guidance (con’t)
Items exempt under this Section are:

 Personnel policies, procedures and internal
 Surveys, polls and fact gathering for
  decision making
 Statistical data furnished to a state agency
  shall be posted only after the agency has
  concluded its final compilation and result
Public Guidance (con’t)
                 After July 1, 2003,
                  the information
                  listed in ACA § 25-
                  19-108 shall be
                  made publicly
                  accessible, without
                  charge, in
                  electronic form via
                  the Internet.
Penalties and Enforcement

 A.C.A. 25-19-104 (Criminal Penalty)
  – Negligent violation is a misdemeanor—fine of not more
    than $200 or 30 days in jail or both, or a sentence of
    appropriate public service or education or both
Penalties and Enforcement

 A.C.A. 25-19-107 (Civil Judicial Enforcement)
   – Any citizen denied their FOIA rights may appeal to
     circuit court
Other Possible Enforcement Proceedings

 Tampering with a public records is a felony
  – A.C.A. 5-54-121
 Declaratory judgments
 Mandamus
 Injunctive relief
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