Shine On You Crazy Diamonds: the Arkansas Freedom Of Information Act | The Hoglawyer

Sunday, October 8, 2006

Shine On You Crazy Diamonds: the Arkansas Freedom Of Information Act

Posted By on Sun, Oct 8, 2006 at 5:54 PM

Everyone has heard of the Freedom of Information Act, Ark. Code Ann. 25-19-102, but few realize how powerful it can be. It requires government officials to promptly provide copies of almost all public records. Similarly, it requires that most meetings be held openly and and that meeting dates and agendas be released. The Act itself explains the General Assembly's intent:

Legislative intent.

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 chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.

The Arkansas Supreme Court has said the FOIA has the "broad and laudable purpose that public business be performed in an open and public manner." I couldn't agree more. What people don't realize is what all you can get through the FOIA. For one, any state, county, or city employee's salary is public. If you want, you can ask for the salaries of everyone employed in a certain agency, or everyone who makes above a certain amount. You are entitled to things you wouldn't expect you could get -- mileage reports, phone records, expense reports, emails. Of course not everything is public. For instance, most work a judge does would not be available. Similarly, "attorney work product," meaning discussions between a government agency and their attorney would be shielded for the most part, or else there would be no right to confidential conversations. Of course, our conservative governor has liberally interpreted what is meant by the "working papers" exception to a FOIA request as to his office. Ongoing criminal investigations are not available, but once the trial is over - almost every part of a criminal case my be examined and copies. Arrest photos, police interviews, jail records, and police reports are all public unless a specific exception applies. Most court pleadings and orders are public, so even things that have very sensitive information from a nasty divorce are available to the public unless the case is sealed. Again, unless a case has been sealed, the public has access to every appeal that has been filed in the Arkansas Supreme Court. They have an archive of thousands and thousands trial transcripts of all sorts of cases.
    The most frequent user of the FOIA is of course journalists, but it is also heavily used by lawyers, industry representatives, and just private citizens. While they have the right to charge a copy fee, you can request that the fee be waived if the request is to obtain information that will not be used commercially. One of the best things about the FOIA is that there are consequences if it is violated. If I request, for instance, the phone records of a state agency, and they refuse my request or unnecessarily delay my request the law is very clear that the agency can be sued and the person responsible can be jailed if it is a flagrant violation. Even better, the agency must pay my legal expenses if the court finds that the public officials acted arbitrarily or with bad faith. Depoyster v. Cole
    The Arkansas Press Association has put out an excellent handbook and website for explaining in clear terms how to use the FOIA in Arkansas. There are links to sample letters and even letters to appeal the denial of a FOIA request. Years ago, a "client" of mine asked me to do an FOIA request of his/her own state agency requesting to see everyone's salary. I didn't think it was any big deal and I did so. As I found out later, they passed out a memo in that agency asking if anyone knew who I was and the tone sounded like they did not appreciate my actions. Years later, the agency's employees would ask why I did that - and of course, I had a duty of confidentiality and couldn't tell them it was one of their own who wanted the information. Some government employees seem to forget exactly who they are working for -- not their boss, not the head of their agency, and not even the governor - they work for all of us. They should remember there is nothing wrong about a FOIA request - FOI keeps government clean, free of corruption, self-serving actions, and at times exposes incompetence and dereliciton of duty. To me the Freedom of Information is a tool to make sure the taxpayers of Arkansas are getting what they pay for - and that government employees aren't treating their agencies like personal fiefdoms. Journalists, often called the fourth branch of government, are indespensable because in they don't have to be concerned about possible retribution after a FOI request is made.
    I'm no journalist - I just pretend to be one online. Fortunately, anyone can file an FOIA request - as long as they are a resident of Arkansas. If there are any requests any of you would like to make - by especially state, county, and city employees - but are scared to do so because of retaliation - I'm itching to write some future blog posts about FOI requests, the response to those requests, and the information gleaned. Other states call their FOIA "Sunshine Acts." I'm curious as to what issues people believe that with a little natural light interesting facts might be exposed. Shine on.
    This is a sample FOIA request letter

    Here is a step-by-step explanation of how to use the FOIA in Arkansas

    Individual State Employees Need Not Pay Attorney Fees

    Here is a recent case in which a court was uphelf for denying legal fees in conjunction with an FOIA request

    Attorney General's FOI Hotline    (800) 482-8982
    Attorney General's FOI Seminar ( In Power point format - but great stuff )


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