The Arkansas Freedom of Information Act

FORMS

CHAPTER 1: BACKGROUND

§ 1.01 Introduction

Freedom of information (FOI) statutes—also commonly called access statutes or sunshine laws—are relatively new legislative creations. They serve as the foundation for public access to otherwise often opaque government action and to counter the selective release of government information designed to mislead the public. Now found in every state and at the federal level, modern FOI statutes date from the early 1950s when journalism organizations began to push strongly for open-meetings and open-records legislation. This chapter examines the background of the Arkansas Freedom of Information Act, enacted in 1967, as well as the rules of statutory interpretation the Arkansas Supreme Court has developed with respect to the statute. Because FOIA does not operate in a vacuum, this chapter also considers the impact of federal law and the relationship between the FOIA and other Arkansas statutes. Finally, this chapter reviews the legal effect of opinions issued by the Office of the Attorney General, which has played an important role in FOIA matters over the years.

§ 1.02 Historical Development¹

§ 1.02[a] In General

The common law of England did not recognize a general right of the public to inspect government records and documents or to attend meetings of governmental bodies. Nonetheless, the English courts developed a limited right of access to records on behalf of those who sought to obtain evidence or information for use in lawsuits. This litigation-interest rule found its way to the United States and was gradually broadened to permit inspection of governmental records by those seeking to vindicate the public interest. Inspection was commonly allowed, for example, when a citizen or taxpayer sought to explore the financial condition of a governmental body or expose irregularities in official conduct.

There remained, however, important barriers to public access. Inspection of records was not permitted if the requester’s purpose was an improper one—such as idle curiosity, maliciousness, or commercial gain—and a governmental body could withhold records if disclosure would be detrimental to the public interest. The definition of public record was narrow; if, for instance, a record was on file at the governmental agency but was not required by law to be kept there, it was not considered a public record. Enforcement of the common-law right of access often proved difficult, primarily because of limitations inherent in the judicially created remedies. For example, while a writ of mandamus was technically available to a person denied access to records, a court could properly deny relief if release of the records would adversely affect the public interest or the rights of particular individuals. Further, relief of this sort was considered discretionary and could be denied even if the plaintiff established an otherwise clear entitlement to the records.

Despite this development of a common-law right to inspect government-held records under certain circumstances, there was no corresponding right to observe the deliberations of governmental bodies. Parliamentary debates in England were routinely held behind closed doors until the late nineteenth century, initially on the theory that secrecy protected against interference by the Crown and later because members desired to conceal their statements and votes from curious constituents. Not surprisingly, this secrecy was exported to colonial America, where legislatures excluded the public from, and prohibited publication of, their proceedings. Even though such restrictions played a role in the movement toward independence, the Continental Congress and the Constitutional Convention conducted their proceedings in secret, a practice followed by both the House and Senate for several years under the U.S. Constitution. Today, debates in both houses are televised, but many committee sessions—where the bulk of Congress’s work is done—remain closed to the public. The proceedings of federal administrative agencies, whose powers and numbers have increased dramatically since the New Deal, were not required to be open to the public until 1976.

§ 1.02[b] Arkansas Law

Prior to passage of the Arkansas Freedom of Information Act in 1967, state law respecting access to records and meetings was not well developed. While scattered sections of the Arkansas statutes provided for public inspection of certain records, no comprehensive provision permitted public inspection of documents held by state or local governmental bodies. Nor was the common-law much help, because judicial decisions dealt principally with election records required by statute to be open to the public.² Two cases, however, took a surprisingly broad view of the common-law right of access to records. In a 1940 decision, Collins v. State,³ the Arkansas Supreme Court ruled that internal-audit records of the Pulaski County sheriff’s office were open to inspection. Twenty-six years later, in Republican Party of Arkansas v. State ex rel. Hall,⁴ the Court ordered the state treasurer to make public a list of banks where state funds were deposited. In fact, the Hall Court rejected the argument that there was no common-law right of access: [I]f there be any rule of the English common law that denies the public the right of access to public records, it is repugnant to the spirit of our democratic institutions.⁵

With respect to open meetings, state law prior to the FOIA was purely statutory in nature. Article V, Section 13 of the Arkansas Constitution provides that sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret. The secrecy exception is obviously large enough to swallow the rule of openness, and the provision does not apply to legislative committees, state agencies, or local governmental bodies.⁶ The first open-meetings statute, passed in 1947 and amended in 1949, did not extend beyond the state level and had various other shortcomings. The legislature enacted a broader statute reaching such political subdivisions as cities, counties, and school districts in 1953, but it, too, proved relatively ineffective.

The public-access issue lay dormant until the mid-1960s when several factors coalesced to bring about enactment of the FOIA, which includes open-meetings provisions: a campaign by Arkansas journalists; a study by the Legislative Council comparing state access laws with those of other jurisdictions; controversial closed meetings held by various governmental bodies; unfavorable Attorney General opinions interpreting the 1953 statute; organizational efforts by the state Republican Party, including successful litigation to obtain access to voting records; the Arkansas Supreme Court’s decision in the Hall case; and the election of Governor Winthrop Rockefeller, who later said the FOIA was his proudest achievement as the state’s chief executive.

§ 1.03 Rules of Statutory Interpretation

§ 1.03[a] Presumption of Openness

The FOIA addresses, in comprehensive fashion, the public’s right of access regarding both records and meetings. In so doing, the statute clearly reflects a policy of open government eloquently expressed by Louis Brandeis and Woodrow Wilson.⁷ Publicity is justly commended as a remedy for social and industrial diseases, Brandeis once wrote. Sunlight is said to be the best of disinfectants. . . .⁸ Similarly, Wilson remarked that [l]ight is the only thing that can sweeten our political atmosphere [and] open to view the innermost chambers of government.⁹ With an obvious homage to these great Americans, Section 25-19-102 of the FOIA states:

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this [Act] is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.

This legislative declaration of policy has set the tone for judicial interpretation of the FOIA. There was room, however, for a quite different approach. A traditional rule of statutory construction holds that statutes overturning or limiting principles established at common-law—that is, by the courts resolving disputes among litigants—must be narrowly interpreted. Under a similar doctrine, penal statutes are to be strictly interpreted because they impose criminal penalties or other harsh sanctions. The FOIA arguably fell under both rules: the common-law allowed only limited access to records and none to meetings, and the FOIA contains a provision making violation of the Act a misdemeanor. The Arkansas Supreme Court, however, ruled that the Act was passed for the public benefit and must therefore be liberally construed. This case and others that followed are considered in the following section.

§ 1.03[b] Liberal Construction of Openness Provisions; Narrow Construction of Exemptions

Section 25-19-106(a) of the FOIA states that meetings are to be open [e]xcept as otherwise specifically provided by law, thereby indicating that another statute may serve as an exemption allowing a closed session.

This provision was at issue in Laman v. McCord,¹⁰ the first FOIA case to reach the Arkansas Supreme Court. The question in Laman was whether a city council could meet in a closed session with the city’s attorney. The City of North Little Rock contended that such an exemption arose from the law protecting confidential communications between attorney and client. The Supreme Court, in an opinion by Justice George Rose Smith, rejected this argument and ruled that by the closing the meeting the city had violated the FOIA.

First, the Court dealt with the question of statutory interpretation:

Whether a statute should be construed narrowly or broadly depends upon the interests with which the statute deals. As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. In the act now before us the General Assembly clearly declared the State’s public policy: It is vital in a democratic society that public business be performed in an open and public manner. We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.¹¹

Second, the Court concluded that, as a necessary corollary to this principle, any exceptions to the FOIA’s disclosure requirements must be narrowly construed. Turning to the city’s argument that the statutory attorney-client privilege was an exception to the FOIA, Justice Smith wrote:

The attorney-client privilege, originally a common law immunity, now rests upon a section of the Civil Code, adopted in 1869, which provides that an attorney is incompetent to testify about his client’s communications without the client’s consent. For us to say that [this statute], dealing only with a testimonial disqualification, specifically provides that the city council may consult its attorney in secret would simply amount to striking the word specifically from the Freedom of Information Act.¹²

Application of Laman’s first prong—that the FOIA is to be liberally interpreted to achieve its purposes—is illustrated by Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc.¹³ In that case, an entity subject to the FOIA violated the Act’s open-meetings requirement. The most significant issue before the Supreme Court was whether a plaintiff complaining of such a violation is entitled to remedies beyond those expressly set forth in the FOIA. In an opinion by Justice Robert H. Dudley, the Court answered that question affirmatively, ruling that a plaintiff may seek judicial invalidation of action taken at the illegal meeting even though the FOIA does not specifically provide for such a remedy. Justice Dudley wrote:

Some states hold that when the public meeting statute sets out specific remedies, the courts are limited to those remedies set out. . . . We decline to take such a limited approach but instead, in order to effectuate the laudable public purposes of the act, hold that some actions taken in violation of the requirements of the act may be voidable. It will be necessary for us to develop this law on invalidation on a case-by-case basis.¹⁴

The Supreme Court has explained that the second prong of Laman—that FOIA exemptions are to be narrowly construed—serves to counterbalance the self-protective instincts of the governmental bureaucracy.¹⁵ Application of this principle is illustrated by the Court’s decision in Ragland v. Yeargan.¹⁶ At issue was a statute that exempted from the FOIA all tax returns filed by individuals, as well as audit reports and related materials concerning those returns. However, the statute said nothing about corporate tax returns, and the Court ruled that those records were subject to public inspection. Justice Steele Hays said:

We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.¹⁷

As discussed more fully in Chapter 3, the General Assembly subsequently amended the statute at issue in Ragland to also cover corporate- and partnership-tax records, thereby exempting them from disclosure under the FOIA.¹⁸

While the Laman and Ragland cases hold fast to the FOIA requirement that another statute must be specific to effect a FOIA exception or exemption, the Court also has narrowly construed the exceptions and exemptions contained in the FOIA itself. For example, in Hengel v. City of Pine Bluff,¹⁹ the question was whether arrest and incident reports, jail logs, and shift sheets maintained by the Pine Bluff police department fell within Section 25-19-105(b)(6) of the FOIA, which exempts [u]ndisclosed investigations by law enforcement agencies of suspected criminal activity. The police department argued this exemption was applicable if, in the judgment of the officer in charge, disclosure of the arrest reports and other records would hinder an investigation. In an opinion by Justice Hays, the Supreme Court rejected this argument and held that the records were not sufficiently investigative in nature to qualify for the exemption. The interpretation urged by the police department, Justice Hays wrote, would broaden the ‘undisclosed investigation’ exception, a result contrary to the teaching of Laman and Ragland that FOIA exceptions are to be narrowly construed.²⁰

Similarly, the Attorney General has applied the narrow-construction rule in opining that two separate FOIA requests must be fulfilled even though their combined effect would be to disclose information that is not releasable if it were the subject of a single request.²¹ The Attorney General explained:

[W]hen there is a question about what an exception means, we are required to opt for the interpretation that exempts the fewest records. Likewise, when there is a question about how an exception applies to a given set of facts, we are required to opt for the application that exempts the fewest records. In my opinion, these principles of reading the FOIA indicate that the legislature has prohibited direct release of [records] but not indirect release. . . . If the legislature intends to exempt . . . both direct and indirect release, then it can easily achieve that by amending [the Act].²²

The narrow-construction rule reflects the proper balance between the courts and the legislature with respect to the open-government principle that underlies the FOIA. The rule requires the General Assembly to strike the balance between public access and countervailing interests that might justify confidentiality. If a statute does not specifically provide for nondisclosure, the courts must resolve any ambiguity in favor of openness and will not act on their own to create an exception that provides for secrecy. As a result, the records or meetings in question will be open to the public by virtue of the general FOIA presumption of openness.²³

§ 1.03[c] Common Sense Balancing Approach

Although generally the FOIA is subject to liberal construction and its exceptions and exemptions subject to narrow construction, the Court has in some circumstances departed from that general rule. In Sebastian County Chapter of American Red Cross v. Weatherford,²⁴ Justice Robert L. Brown wrote for the majority: [W]e are aware of the need for a balancing of interests to give effect to the intent of the General Assembly, and we do so with a common sense approach.²⁵ In that case, discussed more fully in Chapter 2,²⁶ the issue was whether private organizations that receive indirect financial assistance from government are supported wholly or in part by public funds and thus subject to the FOIA. While recognizing the liberal-interpretation rule, the Court construed the term public funds to mean moneys belonging to government, a reading of the statute it deemed consistent with the intent of the legislature. Because no payment of government moneys was made to the Red Cross, the FOIA did not apply to the organization.²⁷ Prior to this decision, the Attorney General had relied on the liberal-interpretation rule in concluding that indirect financial support was sufficient to trigger the FOIA.²⁸

Like the liberal-construction rule, the narrow-construction rule obviously is not absolute. The Court explained in Bryant v. Mars²⁹ that the narrow construction of FOIA exemptions is a general proposition subject to judicial balancing under a common sense approach.³⁰ The Bryant case involved Section 25-19-105(b)(7) of the FOIA, which exempts [u]npublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, Court of Appeals Judges, and the Attorney General. The Attorney General had candidly observed in his brief that the statute does not specify whether the exemption is given to the Attorney General in a collective sense or in an individual sense. The narrow-construction rule plainly would have limited the exemption to the named officials. But the Court held that the provision also applies to the officials’ staffs and private consultants, a conclusion the Court asserted as consistent with the legislative intent. The Court did not distinguish a previous decision holding the working papers exemption inapplicable to legislative auditors.³¹

The impact of Bryant remains unclear. One could argue that Bryant simply stands for the proposition that there is no need to resort to principles of statutory interpretation, including the narrow-construction rule, when the legislature’s intent can be ascertained.³² However, one is exceedingly hard-pressed to determine the General Assembly’s intent from the face of the working papers exemption, and there is little legislative history to provide any clues.³³ Another difficulty is that the Court has not stated when or how to employ the balancing approach. Some cases decided after Bryant refer to the common-sense approach,³⁴ but others employ the narrow-construction rule without mentioning balancing.³⁵ This reflects the perhaps obvious fact that court opinions inevitably are incomplete in their analysis and, at times, even provide contradictory guidance.

Until the Court provides some clarification, the safest course is to use the narrow-construction rule as the starting point in interpreting FOIA exemptions, while recognizing that the Supreme Court ultimately may be convinced to depart from it in favor of the balancing approach in any particular case. Because one cannot predict when the Court will choose to balance the interests rather than apply the narrow-construction rule, the Court’s decision in Bryant v. Mars could well foster uncertainty with respect to the FOIA and encourage agencies subject to the Act to stretch ambiguous exemptions to reach particular records or meetings. In other words, one cannot safely predict that all ambiguities in the FOIA will be resolved invariably in favor of public access. Absent precedent to the contrary, however, defaulting to this position is the proper interpretive approach.

§ 1.04 Impact of Federal Law

§ 1.04[a] Statutory Access and Restrictions

As a general matter, the Arkansas FOIA controls access to the records and meetings of state and local governmental entities, as well as to private bodies supported wholly or partially by public funds. The federal access statutes—the Freedom of Information Act,³⁶ the Government in the Sunshine Act,³⁷ and the Federal Advisory Committee Act³⁸—apply to the federal government, not to state or local agencies.³⁹ However, the exemptions from disclosure found in the federal FOIA can affect records prepared by a federal agency and sent to a state agency.⁴⁰ The federal Privacy Act,⁴¹ which both permits and restricts access to particular records, is limited to federal agencies,⁴² with one important exception: the federal act’s restrictions on the use of social security numbers also apply to state and local agencies.⁴³

Federal laws may nonetheless provide alternative or complementary means of access, particularly with respect to records. If the same information is contained in both federal and state or local records, access to the former would be governed by the federal FOIA, and access to the latter would be determined by state law. The fact that the records are exempt from disclosure under the federal statute does not mean they are also unavailable under the Arkansas FOIA. Thus, a person seeking access to particular records should explore the possibility that they are maintained by both federal and state agencies.

Notwithstanding the fact that, as a practical matter, federal and state access statutes do not overlap,⁴⁴ federal law can have a significant impact upon the operation of the Arkansas FOI statute. In one instance, the FOIA specifically references federal law; exempted from open-records requirements are education records⁴⁵ as defined in the Federal Educational Rights and Privacy Act of 1974 (FERPA).⁴⁶ Additionally, the FOIA contains language indicating that all records and meetings are open to the public unless the Act itself or another statute provides otherwise.⁴⁷ These provisions are broad enough to include federal statutes requiring that certain records be kept confidential or that particular meetings be closed.⁴⁸ Moreover, under the supremacy clause in Article VI of the United States Constitution, federal law—including administrative regulations, as well as statutes—supersedes state law and thus controls in the event of a conflict.⁴⁹

Finally, even where federal and state law do not conflict and state law is clearly the only controlling authority, federal law can have an impact upon operation of the Arkansas FOIA by suggesting how courts should interpret the latter. For example, in Young v. Rice,⁵⁰ the Arkansas Supreme Court (as courts in many states have done in interpreting their FOI statutes) relied on federal cases in construing a provision in the FOIA exempting personnel records if disclosure would constitute a clearly unwarranted invasion of personal privacy.⁵¹ The Supreme Court held that this exemption requires the public’s right to inspect the records be weighed against the employee’s right to privacy. This balancing approach was borrowed from federal cases involving a similar exemption in the federal FOI statute.⁵² While we recognize that the federal . . . personnel exemption is not identical to ours, the Court wrote, we find the federal courts’ balancing of the two competing interests to be persuasive.⁵³

§ 1.04[b] Constitutional Access and Restrictions

In addition to the federal statutes mentioned previously, the U.S. Constitution may have a direct impact on access to governmental records and meetings. The Arkansas Supreme Court has recognized a federal constitutional right to privacy that includes protection for an individual’s interest in nondisclosure of personal matters.⁵⁴ Although the Arkansas FOIA does not contain a general provision requiring agencies to withhold records that would invade an individual’s privacy, the constitutional right to privacy may bar disclosure of records that would otherwise be available under the FOIA. This issue is discussed more fully in Chapter 3.⁵⁵

On the other hand, the U.S. Constitution may create a right of access wholly apart from the FOIA or other state statutes. Under the First Amendment, the public and the press have a constitutional right—albeit not an absolute right—to attend criminal trials and related proceedings.⁵⁶ Beyond the criminal-trial context, the scope of this constitutional right of access is unclear. For example, the lower courts generally agree that it applies to civil as well as criminal proceedings and to judicial records,⁵⁷ but there is no constitutional right to examine certain types of documents such as discovery materials.⁵⁸ Moreover, the U.S. Supreme Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.⁵⁹ As the late Justice Potter Stewart once observed, the Constitution does not guarantee access to particular government information, or . . . require openness from the bureaucracy.⁶⁰

§ 1.05 Impact of Related Arkansas Statutes

As discussed in Chapters 3 and 4, many Arkansas statutes affect the records and meetings of public bodies.⁶¹ Some statutes, for example, exempt certain records from the FOIA’s disclosure requirements, while others provide that the boards of particular state or local government agencies may hold closed meetings. Other statutes expressly require that certain records be available to the public or that meetings be held in the sunshine. We focus here on legislative enactments pertaining to matters the FOIA itself does not address.

§ 1.05[a] Retention, Transfer, and Destruction of Records

§ 1.05[a][1] Limited Applicability of FOIA

The FOIA does not expressly require agencies to preserve the records in their possession, nor does it specify the circumstances in which records may be destroyed or transferred to other agencies. Section 25-19-103(7)(A) defines public records as those required by law to be kept or otherwise kept by an agency and states that all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records. Under Section 25-19-105(a), such records are open to the public for inspection and copying unless the FOIA itself or another statute provides otherwise. These provisions make plain that the FOIA is primarily an access statute, not a records-management statute governing the preservation, destruction, and transfer of records.⁶²

The FOIA itself applies, however, in at least three situations involving the transfer or destruction of records. First, an agency cannot merely transfer records elsewhere to avoid disclosure under the FOIA. If the agency retains control of the records in the sense that it can demand their return, those records should be considered in the agency’s possession for FOIA purposes.⁶³

Second, an agency cannot allow a person who has submitted a record to withdraw it after a FOIA request for that document has been made. This issue arose with respect to job applications, which become public records upon their submission. The Attorney General has correctly opined that, in the face of a FOIA request, allowing a prospective employee to withdraw his or her application and supporting documents in a way that removes them from the purview of the FOIA would violate the Act. [R]ecords are presumed to be public records when they are maintained in public offices or by public employees, the Attorney General wrote. Any policy permitting withdrawal of public records could not, in my opinion, operate directly or indirectly to thwart the FOIA.⁶⁴

Third, an agency’s destruction of records after receipt of a proper FOIA request covering those materials would obviously be a denial of access and, therefore, a violation of the Act.⁶⁵ The Supreme Court has employed this reasoning in a case involving alteration of records in response to a FOIA request. In Hengel v. City of Pine Bluff,⁶⁶ a municipal police department had deleted certain information from a jail log before releasing it to a newspaper reporter. The newspaper argued that this alteration of the log violated the FOIA, and the Supreme Court agreed: To expunge, excise or alter in any way information open to public inspection is a denial of the rights granted by the FOIA, thus, clearly in violation of the Act.⁶⁷

If no FOIA request is pending at the time records are transferred, withdrawn, or destroyed, the Act itself does not apply, at least if the agency acted in accordance with an established records-management policy. (As discussed further below, however, other state statutes expressly address record-keeping.) The FOIA issue arose in Daugherty v. Jacksonville Police Department.⁶⁸ A driver who had been stopped for speeding requested copies of audio and video recordings made in connection with traffic stops by two officers, including the patrolman who had ticketed her, during a three-week period. She later narrowed the request for recordings made over two days, but recordings from the second day had by that time been automatically purged from the recording system in accordance with departmental policy. The Supreme Court affirmed the circuit court’s determination that there had been no FOIA violation and quoted approvingly from an Attorney General’s opinion that destruction of records would violate the FOIA only if the documents were destroyed after a request for access to the documents had been presented. . . .⁶⁹

The Court was careful to point out in Daugherty that there was no evidence contradicting the police chief’s testimony that the recordings had been purged pursuant to departmental policy,⁷⁰ thereby suggesting a different result if destruction of records absent such a policy would subvert the FOIA, even though no request for the records had been made. The Attorney General had previously cautioned against destroying records in this situation,⁷¹ and the safer course is to destroy public records only in accordance with an established records-management policy and under the provisions of any applicable records-management statutes, rather than on an ad hoc basis.

Such caution is justifiable in light of Depoyster v. Cole,⁷² in which the Supreme Court seemed to hold that an agency violated the FOIA by destroying records although there was no pending request for their disclosure. The case arose when the Arkansas Activities Association, a private organization subject to the FOIA by virtue of its support by public funds, discarded ballots reflecting the votes of the members of its executive committee at a meeting to select the sites for regional basketball tournaments. The Supreme Court concluded that these ballots were public records which should have been retained under the FOIA. By way of explanation, the Court wrote that Section 25-19-105(a) envisions that public records will be retained and made available for all citizens to examine.⁷³

Despite this sweeping language, the direct consequence of Depoyster was more limited. The central issue in the case was whether the association’s executive committee, at a meeting required to be public, violated the FOIA by allowing committee members to vote with secret, unsigned ballots. On this point, the Court held squarely that the public was entitled to know how each committee member voted.⁷⁴ But had the unsigned ballots been retained, the public still would not have known who cast which votes. Thus, the discussion of record retention was broader than the Court’s decision under the FOIA’s open-meetings requirements.

Moreover, the Court’s reference to the FOIA’s open-records requirements immediately follows a declaration that persons not in attendance at the meeting also should have a means to learn how each committee member voted. Given that context, the retention requirement could be limited to the ballots, which simply would have preserved the record of what those in attendance at the open meeting could have witnessed. Again, the Court could have reached this result by relying on the open-meeting requirements exclusive of the open-record requirements.

§ 1.05[a][2] Applicability of Other Statutes

The General Assembly has enacted statutes governing retention and disposition of the records of cities, counties, and other political subdivisions. For example, county records are covered by a rather detailed statutory scheme under which certain records must be maintained permanently, while others must be kept for a specified number of years.⁷⁵ Municipal accounting records must be kept from three to seven years, depending upon the type of record, and may be destroyed only in accordance with a particular procedure.⁷⁶ Water-improvement districts must maintain some records permanently, but may dispose of others after three years.⁷⁷ The Arkansas Public Safety Communications Act of 1985 requires that 911 calls be recorded and retained for at least 31 days.⁷⁸

Other statutes permit destruction of documents after they have been reproduced for purposes of preservation. For example, the mayor of a city or a county quorum court may authorize the disposal, archival storage, or destruction of records that have been placed in conveniently accessible files or other suitable format, as long as provision has been made for preserving, examining, and using them.⁷⁹ Another statute appears to allow any government agency to destroy a record that has been copied by a process which accurately reproduces or forms a durable medium for so reproducing the original, unless its preservation is required by law.⁸⁰

In 2005, the General Assembly enacted legislation that expressly recognized the need [for] a general records retention law . . . for disclosure under the [FOIA], for historical purposes, and for the efficient operation of state government.⁸¹ To that end, Act 918 directed the Executive Chief Information Officer to adopt records retention rules and guidelines for public records commonly found in most state agencies.⁸² The ECIO promulgated a General Records Retention Schedule effective July 1, 2007.⁸³ Also on that date, the Office of the EICO was abolished by statute and its functions transferred to the Department of Finance and Administration.⁸⁴

By statute, the Retention Schedule is binding only on state agencies, a term defined as all state departments, boards, and commissions.⁸⁵ Expressly excluded from the definition are elected constitutional officers and their staffs; the General Assembly and its committees and staff’ the Supreme Court, Court of Appeals, and the Administrative Office of the Courts; and public institutions of higher education with respect to academic, research, health care, and existing information and technology applications and underlying support.⁸⁶

The Retention Schedule controls the disposition of records in seven categories: (1) general administrative, (2) meeting, (3) automated system, (4) personnel and human resource, (5) fiscal, (6) legal, and (7) grant. Tables describe records within these categories according to title, description, and retention period, the retention periods ranging from minimal, e.g., as long as a record retains administrative value, to permanent. The stated retention periods are minimums; records may be retained longer at a government entity’s discretion. And the retention periods may be superseded by longer retention periods provided in other laws, such as state and federal regulations and statutes. Importantly, the schedule adopts the medium-neutrality principles of the Arkansas FOIA, i.e., the content of a record, not its medium of storage, paper or electronics, dictates its retention disposition."⁸⁷

§ 1.05[a][3] Criminal Penalties

A person who destroys public records could find himself or herself in violation of two criminal statutes: the general tampering with public records provision of the criminal code, a felony; and, in some situations, the FOIA itself.

First, a section of the Arkansas Criminal Code makes tampering with public records at least a class D felony,⁸⁸ which is punishable by a maximum fine of $10,000 and imprisonment of up to six years.⁸⁹ The statute provides:

A person commits the offense of tampering with a public record if, with the purpose of impairing the verity, legibility, or availability of a public record, he or she knowingly: (1) Makes a false entry in or falsely alters any public record; or (2) Erases obliterates, removes, destroys, or conceals a public record.⁹⁰

For purposes of this statute, the term public record includes official books, papers, exhibits, or records of any type required by law to be created by or received and retained in any governmental office or agency, affording notice or information to the public or constituting a memorial of an act or transaction of a public office or public servant.⁹¹

Second, as discussed more fully in Chapter 5, the FOIA provides that any person who negligently violates⁹² the Act is guilty of a Class C misdemeanor, which is punishable by a fine of up to $500, imprisonment for up to 30 days, or both.⁹³ In some cases, only the FOIA penalty will be available; in contrast to the criminal tampering statute and the criminal penalty of the state records act, FOIA Section 25-19-103(1) defines public record to include the records of any entity supported in whole or part by public funds. That broader definition, examined in Chapter 2, of course, can reach the records of some private entities.⁹⁴

§ 1.05[b] Conduct of and Participation in Meetings

With respect to meetings, the FOIA contains two basic requirements: (1) that notice of meetings be furnished to anyone who requests it (with the press additionally entitled to notice of special or emergency meetings); and (2) that meetings be held in public, unless the FOIA or another statute specifically allows a closed session.⁹⁵ The FOIA says nothing, however, about the right of those in attendance to participate in the meeting or about the manner in which the meeting is to be conducted. Other state statutes speak to these questions; in fact, several hundred Arkansas statutes make some reference to meetings or hearings of governmental bodies. The provisions applicable to a particular agency should be consulted for guidance.⁹⁶

For example, [i]n any meeting required to be open to the public, the county quorum court [or other county body] shall adopt rules for conducting the meeting which afford citizens a reasonable opportunity to participate prior to the final decision.⁹⁷ The quorum court is required to adopt rules of procedure and must keep minutes of its meetings, which must be held at least once each calendar month. Special meetings may be called by the county judge or by a majority of the elected justices, with notice to all members. The county judge presides over the quorum court without a vote but with the power of veto, and a majority of the justices on the court constitutes a quorum.⁹⁸ Similar statutes apply to cities, school boards, and state agencies.⁹⁹

The FOIA is also silent as to the time of day that meetings may be held. The Attorney General, however, has opined that meetings cannot be set in such a way as to effectively avoid the public meeting requirement of the FOIA. . . .¹⁰⁰ Moreover, other statutes may impose specific obligations on particular entities. For example, regular or special meetings of school boards and school board committees dealing with personnel or personnel policies, must be held after 5:00 p.m., except in emergency situations.¹⁰¹

§ 1.06 Opinions of the Attorney General

Arkansas Supreme Court decisions interpreting the FOIA are definitive statements of the law. Decisions of the Court of Appeals are also binding statewide, of course, unless the Supreme Court subsequently issues a contrary decision.¹⁰² In some instances, however, the FOIA is ambiguous and the state’s appellate courts have not yet had an opportunity to address particular issues. Although opinions of the Attorney General may provide some guidance, they are not binding and lack the legal force of court decisions.¹⁰³ Put another way, an Attorney General’s opinion is not law, but rather a statement of opinion about what the law is. Other lawyers, including the authors of this book, may at times disagree.

This is not to say that Attorney General’s opinions are unimportant. For example, a public official who relies in good faith upon such an opinion will likely be shielded from civil and criminal liability¹⁰⁴ and from a court order requiring him to pay the attorney’s fees of a plaintiff who brought suit under the FOIA.¹⁰⁵ Moreover, the Attorney General’s interpretation may be persuasive when the courts are faced with unresolved questions about the Act.¹⁰⁶ Over the years, the Attorney General has issued hundreds of opinions involving a wide variety of FOIA issues. All Attorney General opinions covering FOIA and other matters are themselves public records, and opinions from 1991 to present are searchable in an online database.

¹⁰⁷

The Attorney General is authorized by statute to render legal opinions at the request of certain public officials, including members of the General Assembly, all state boards and commissions, the heads of executive departments, and prosecuting attorneys.¹⁰⁸ Moreover, the FOIA expressly permits individual citizens to request opinions when personnel and job-evaluation records are at issue.¹⁰⁹ Opinions issued pursuant to these provisions of the Act represent official statements of the Attorney General.

¹¹⁰

In the past, the Attorney General occasionally wrote informal opinions to persons not expressly authorized by law to request official opinions. These opinions do not bear a number and typically include language making plain that they are merely an informal and unofficial expression of view given with the desire to be helpful.¹¹¹ While these informal opinions should also be persuasive authority in a judicial proceeding, though perhaps entitled to less weight than an official opinion, they presumably afford no protection to a public officer or employee who relies upon them.

Some states afford citizens greater opportunity to obtain an opinion from the attorney general. For example, Illinois allows citizens who have been denied a request for information by a public body to file a request for review with the Public Access Counselor established in the Office of the Attorney General.¹¹² In Texas, a governmental body must ask the Attorney General for a decision before withholding information requested in writing by citizens.¹¹³ Such a system provides a mechanism by which disputes over access to government documents may potentially be resolved without litigation.

¹ This material is taken from John J. Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 ARK. L. REV. 741 (1984). With respect to events leading to enactment of the Arkansas FOI act, that article acknowledges its reliance on Jerry Schaeffer, Arkansas’ Freedom of Information Act: The Public’s ‘Watchdog’ in State and Local Government (May 1982) (unpublished M.S. thesis, Arkansas State University Library).

² The present-day common-law right of access to judicial records is discussed in Chapter 2, § 2.02[c][3].

³ 200 Ark. 1027, 1033, 143 S.W.2d 1, 9 (1940).

⁴ 240 Ark. 545, 400 S.W.2d 660 (1966).

⁵ Id. at 549, 400 S.W.2d at 662.

⁶ Under Amendment 42, Section 4 of the Arkansas Constitution, proceedings in the Senate to remove a member of the State Highway Commission must take place in public. At the conclusion of the public hearing, however, the Senate, sitting as a body in executive session, may remove said member or members of the Commission by a majority vote conducted by secret ballot.

⁷ A comment by James Madison is also often quoted in this regard: A Popular Government, without popular information, or the means of acquiring it is but a Prologue to a Farce or a tragedy, or perhaps both. This statement, however, came not in an argument in favor of access to government information, but in support of widespread public education. See Paul H. Gates & Bill F. Chamberlin, Madison Misinterpreted: Historical Presentism Skews Scholarship, 13 AM. JOURNALISM 38, 38-39, Winter 1996.

⁸ LOUIS BRANDEIS, OTHER PEOPLE’S MONEY 62 (1933), quoted in Buckley v. Valeo, 424 U.S. 1, 67 (1976).

⁹ Woodrow Wilson (1884), quoted in S. Rep. No. 94-354, at 9 (1975).

¹⁰ 245 Ark. 401, 432 S.W.2d 753 (1968).

¹¹ Id. at 404-05, 432 S.W.2d at 755 (citations omitted).

¹² Id. at 406, 432 S.W.2d at 756 (citation omitted).

¹³ 285 Ark. 397, 687 S.W.2d 840 (1985).

¹⁴ Id. at 401, 687 S.W.2d at 842-43.

¹⁵ McCambridge v. City of Little Rock, 298 Ark. 219, 226, 766 S.W.2d 909, 912 (1989).

¹⁶ 288 Ark. 81, 702 S.W.2d 23 (1986).

¹⁷ Id. at 85-86, 702 S.W.2d at 25.

¹⁸ ARK. CODE ANN. § 26-18-303. As amended in 1991, the statute permits public access to the name of any taxpayer and the amount of any tax credit, rebate, discount, or commission for the collection of a tax received by the taxpayer pursuant to specified tax incentive statutes. Id. § 26-18-303(b)(11); see Chapter 3, § 3.04[c][1].

¹⁹ 307 Ark. 457, 821 S.W.2d 761 (1991); see also Arkansas Dep’t of Health v. Westark Christian Action Council, 322 Ark. 440, 443, 910 S.W.2d 199, 201 (1995) ([l]ess than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure); Young v. Rice, 308 Ark. 593, 596, 826 S.W.2d 252, 254 (1992) (FOIA exemptions are to be narrowly construed in a manner that favors disclosure); Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581(1987) (applying narrow-construction rule in interpreting Section 25-19-105(b)(7), which exempts working papers of various state officials).

²⁰ 307 Ark. at 463, 821 S.W.2d at 764-65; see Chapter 3, § 3.04[b][8][C].

²¹ Ark. Op. Atty. Gen. No. 2011-118. The question arose after the City of Little Rock had released, pursuant to the FOIA, a list of the names and job positions of all its employees. The city then received a request for the names and job positions for those employees who lived outside Little Rock. The city concluded that this information was subject to disclosure under the FOIA, and the Attorney General agreed. This was so even though a person with both lists could determine the employees who lived in Little Rock, information which itself was exempt from disclosure.

²² Ark. Op. Atty. Gen. No. 2011-118 (emphasis original).

²³ These principles are clearly set forth in Troutt Brothers, Inc. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992), in which the Court held that a statute providing for confidentiality in juvenile-court proceedings did not apply to juvenile arrest records when no charges had been filed. While recognizing that its interpretation of the statute could be viewed as defeat[ing], to some extent, the public policy of shielding juvenile offenders, the Court said that the statute was not specific enough to exempt the arrest records from the FOIA. If [the statute] is to be changed, the Court said, it should be changed by the General Assembly and not by this Court. Id. at 30, 841 S.W.2d at 606-07. Shortly after the decision, the legislature passed a statute expressly making juvenile-arrest records confidential unless the juvenile court authorizes disclosure in writing or the juvenile is charged with a felony in circuit court. The current juvenile code contains the same provisions. See ARK. CODE ANN. § 9-27-309(j).

²⁴ 311 Ark. 656, 846 S.W.2d 641 (1993).

²⁵ Id. at 658-59, 846 S.W.2d at 643.

²⁶ See Chapter 2, § 2.03[e].

²⁷ 311 Ark. at 661, 846 S.W.2d at 645.

²⁸ Ark. Op. Att’y Gen. No. 88-004. See generally Andrea G. Nadel, What Constitutes an Agency Subject to Application of State FOIA, 27 A.L.R.4th 742.

²⁹ 309 Ark. 480, 830 S.W.2d 869 (1992). Co-author Watkins was counsel for the appellee in this case.

³⁰ Id. at 485, 830 S.W.2d at 871.

³¹ Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581(1987).

³² E.g., Hot Springs Sch. Dist. No. 6 v. Wells, 281 Ark. 303, 305, 663 S.W.2d 733, 734 (1984); Ark. Fire & Police Pension Rev. Bd. v. Stephens, 309 Ark. 537, 541, 832 S.W.2d 239, 241 (1992). This principle also helps explain two earlier FOIA cases. See Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977); ACORN v. Jackson, 263 Ark. 67, 562 S.W.2d 589 (1978).

³³ The Court might have been influenced by the separation-of-powers doctrine, because a narrow working papers exemption would arguably interfere with executive branch operations by compelling disclosure of sensitive information. See Taylor v. Worrell Enters., Inc., 409 S.E.2d 136, 139-40 (Va. 1991) (construing similar working-papers exemption to avoid separation-of-powers problem, recognizing legislative intent to avert mandatory disclosure that would interfere with Governor’s ability to do the job); Office of Governor v. Washington Post Co., 759 A.2d 249, 274-89 (Md. 2000) (Cathell, J., & Bell, C.J., dissenting) (discussing at length separation-of-powers limits on FOIA reach); see also Ark. Newspaper, Inc. v. Patterson, 281 Ark. 213, 215, 662 S.W.2d 826, 827 (1984) (observing that subsection (b)(8), which exempts records protected from disclosure by order or rule of court, prevents any entanglement in the separation of powers doctrine).

³⁴ E.g., Nabholz Constr. Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 418, 266 S.W.3d 689, 693-94 (2007); National Park Med. Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 602-03, 911 S.W.2d 250, 254 (1995); Byrne v. Eagle, 319 Ark. 587, 590, 892 S.W.2d 487, 488 (1995). For discussion and criticism of Nabholz, see Chapter 3, § 3.05[b], and Chapter 5, § 5.02[a].

³⁵ Arkansas Dep’t of Health v. Westark Christian Action Council, 322 Ark. 440, 443, 910 S.W.2d 199, 201 (1995); Troutt Bros., Inc. v. Emison, 311 Ark. 27, 30, 841 S.W.2d 604, 607 (1992).

³⁶ 5 U.S.C. § 552.

³⁷ 5 U.S.C. § 552b.

³⁸ 5 U.S.C. app. 2.

³⁹ Under the Administrative Procedure Act, the term agency means each authority of the Government of the United States, with certain exceptions, including the Congress and the federal courts. 5 U.S.C. § 551(1). For purposes of the federal FOIA, the term ‘agency’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency[.] 5 U.S.C. § 552(f)(1).

The Sunshine Act specifies a more narrow definition of government. It applies to an agency, as defined in § 552(f)(1), headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency. 5 U.S.C. § 552b(a)(1). The Federal Advisory Committee Act applies to advisory bodies established by statute or established or utilized by the President or an agency as defined in § 551(1) in the interest of obtaining advice and recommendations for the President or one or more agencies or officers of the Federal Government[.] 5 U.S.C. app. 2, § 3(2).

These provisions make rather clear the statutes apply only to the federal government, and some courts have so held. E.g., Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir. 1980); Mamarella v. County of Westchester, 898 F. Supp. 236, 237 (S.D.N.Y. 1995). Other courts, however, have suggested that the federal FOIA might reach state or local agencies with extensive federal control amounting to day-to-day supervision. E.g., St. Michael’s Convalescent Hosp. v. California, 643 F.2d 1369, 1374 (9th Cir. 1981); DeHarder Inv. Corp. v. Indiana Housing Fin. Auth., 909 F. Supp. 606, 617 (S.D. Ind. 1995); Lakewood Residents Ass’n v. Township of Lakewood, 682 A.2d 1232, 1237 (N.J. Super. 1994), aff’d, 682 A.2d 1201 (N.J. App. Div. 1996). Significantly, each of these courts found that the requisite control was not present. See also Ark. Op. Att’y Gen. No. 96-363 (opining that confidentiality mandated by federal law supersedes disclosure mandated by state law).

The control test was borrowed from a decision in which the U.S. Supreme Court held that a private health organization funded solely by federal grants was not an agency for purposes of the FOIA, Forsham v. Harris, 445 U.S. 169 (1980). In so holding, the Court wrote that [g]rants of federal funds generally do not create a partnership or joint venture with the recipient, nor do they serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision. Id. at 180.

⁴⁰ See infra note 48.

⁴¹ 5 U.S.C. § 552a.

⁴² See Ark. Op. Att’y Gen. No. 78-103 (opining that neither the federal FOIA nor the Privacy Act applies to state Public Employees Retirement System).

⁴³ Pub. L. No. 93-579, § 7, reprinted at 5 U.S.C. § 552a, note (Disclosure of Social Security Number); e.g., Ark. Op. Att’y Gen. 2002-085. It is not clear, however, what constitutes an agency of a state or local government for purposes of this part of the Privacy Act. Ark. Op. Att’y Gen. No. 2008-071. While another section of the Act defines the term agency with respect to federal entities, state and local agencies are not addressed. See generally Krebs v. Rutgers, 797 F. Supp. 1246, 1253-56 (D.N.J. 1992). Noting the definitional problem, the Attorney General has by analogy applied the federal definition to state entities. See Ark. Op. Att’y Gen. Nos. 96-307 (opining that Teacher Retirement System may be an independent regulatory agency and thus subject to the Act), 96-291 (opining that state courts are not agencies because they are not part of the executive branch of government), 95-262 (concluding, without discussion, that the Workers’ Compensation Commission is an agency subject to the Act). The question may well be moot. As the Attorney General noted in the opinions just cited, another federal statute prohibits release of social security numbers obtained or maintained by authorized persons, a term that includes officers and employees of a state and its political subdivisions. 42 U.S.C. § 405(c)(2)(C)(viii), cited in Ark. Op. Att’y Gen. Nos. 2008-071, 97-199; see, e.g., Ark. Op. Att’y Gen. No. 2006-165 (I have previously opined, in opinions too numerous to recount, that social security numbers of public employees are exempt from public disclosure.); cf. ARK. CODE ANN. § 4-86-107 (restricting dissemination of social security numbers), cited in Ark. Op. Att’y Gen. No. 2008-071.

Some Arkansas Attorney General’s opinions erroneously suggest the Privacy Act has broader application at the state level and forbids the disclosure of other information. See Ark. Op. Att’y Gen. No. 87-070 (stating that social security numbers, unlisted telephone numbers, and specific medical information should not be disclosed in keeping with the federal Privacy Act); Ark. Op. Att’y Gen. No. 87-108 ("personal identifiers, i.e., social security numbers, unlisted telephone numbers, etc. should be censored prior to the records release in keeping with the federal Privacy