The Complete Freedom of Information Act | The Hoglawyer

Tuesday, May 1, 2007

The Complete Freedom of Information Act

Posted By on Tue, May 1, 2007 at 7:29 PM

Just for the sake of being thorough -- here is the entire Arkansas Freedom of Information Act.  

 >> Chapter 19. Freedom of Information Act

§ 25-19-101. Citation

This chapter shall be known and cited as the "Freedom of Information Act of 1967".

§ 25-19-102. Policy statement

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.

§ 25-19-103. Definitions.

As used in this chapter:

(1)(A) "Custodian", with respect to any public record, means the person having administrative control of that record.
(B) "Custodian" does not mean a person who holds public records solely for the purposes of storage, safekeeping, or data processing for others;
(2) "Format" means the organization, arrangement, and form of electronic information for use, viewing, or storage;
(3) "Medium" means the physical form or material on which records and information may be stored or represented and may include, but is not limited to, paper, microfilm, microform, computer disks and diskettes, optical disks, and magnetic tapes;
(4) "Public meetings" means the meetings of any bureau, commission, or agency of the state, or any political subdivision of the state including municipalities and counties, boards of education, and all other boards, bureaus, commissions, or organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds;
(5)(A) "Public records" means writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.
(B) "Public records" does not mean software acquired by purchase, lease, or license; and
(6)(A) "Public water system" means all facilities composing a system for the collection, treatment, and delivery of water to the general public, including, but not limited to, reservoirs, pipelines, reclamation facilities, processing facilities, and distribution facilities.
(B) This subdivision (6) shall expire on July 1, 2007.

§ 25-19-104. Penalty

Any person who negligently violates any of the provisions of this chapter shall be guilty of a Class C misdemeanor.

§ 25-19-105. Examination and copying of public records

(a)(1)(A) Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.

(B)(i) However, access to inspect and copy public records of the Department of Correction and the Department of Community Correction shall be denied to:
(a) A person who at the time of the request has pleaded guilty to or been found guilty of a felony and is incarcerated in a correctional facility; and
(b) The representative of a person under subdivision (a)(1)(B)(i)(a) of this section unless the representative is the person's attorney who is requesting information that is subject to disclosure under this section.
(ii) Access to inspect and copy public records of the Department of Correction and the Department of Community Correction shall be denied to a person under subdivision (a)(1)(B)(i) of this section regardless of whether the records are in the possession of the Department of Correction, the Department of Community Correction, or another agency of the state.
(2)(A) A citizen may make a request to the custodian to inspect, copy, or receive copies of public records.
(B) The request may be made in person, by telephone, by mail, by facsimile transmission, by electronic mail, or by other electronic means provided by the custodian.
(C) The request shall be sufficiently specific to enable the custodian to locate the records with reasonable effort.
(3) If the person to whom the request is directed is not the custodian of the records, the person shall so notify the requester and identify the custodian, if known to or readily ascertainable by the person.

(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:

(1) State income tax records;
(2) Medical records, adoption records, and education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of that act;
(3) The site files and records maintained by the Arkansas Historic Preservation Program of the Department of Arkansas Heritage and the Arkansas Archeological Survey;
(4) Grand jury minutes;
(5) Unpublished drafts of judicial or quasi-judicial opinions and decisions;
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity;
(7) Unpublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, Court of Appeals Judges, and the Attorney General;
(8) Documents that are protected from disclosure by order or rule of court;
(9)(A) Files that if disclosed would give advantage to competitors or bidders and records maintained by the Arkansas Economic Development Commission related to any business entity's planning, site location, expansion, operations, or product development and marketing, unless approval for release of those records is granted by the business entity.
(B) However, this exemption shall not be applicable to any records of expenditures or grants made or administered by the commission and otherwise disclosable under the provisions of this chapter;
(10)(A) The identities of law enforcement officers currently working undercover with their agencies and identified in the Arkansas Minimum Standards Office as undercover officers.
(B) Records of the number of undercover officers and agency lists are not exempt from this chapter;
(11) Records containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks or applications thereon, to perform security functions, including, but not limited to, passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to computers, computer systems or networks, or any data residing therein;
(12) Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy;
(13) Home addresses of nonelected state employees, nonelected municipal employees, and nonelected county employees contained in employer records, except that the custodian of the records shall verify an employee's city or county of residence or address on record upon request;
(14) Materials, information, examinations, and answers to examinations utilized by boards and commissions for purposes of testing applicants for licensure by state boards or commissions;
(15) Military service discharge records or DD Form 214, the Certificate of Release or Discharge from Active Duty of the United States Department of Defense, filed with the county recorder as provided under § 14-2-102, for veterans discharged from service less than seventy (70) years from the current date; and
(16)(A) Records, including analyses, investigations, studies, reports, recommendations, requests for proposals, drawings, diagrams, blueprints, and plans, containing information relating to security for any public water system.
(B) The records shall include:
(i) Risk and vulnerability assessments;
(ii) Plans and proposals for preventing and mitigating security risks;
(iii) Emergency response and recovery records;
(iv) Security plans and procedures; and
(v) Any other records containing information that if disclosed might jeopardize or compromise efforts to secure and protect the public water system.
(C) This subdivision (b)(16) shall expire on July 1, 2007.

(c)(1) Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.

(2) Any personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative.
(3)(A) Upon receiving a request for the examination or copying of personnel or evaluation records, the custodian of the records shall determine within twenty-four (24) hours of the receipt of the request whether the records are exempt from disclosure and make efforts to the fullest extent possible to notify the person making the request and the subject of the records of that decision.
(B)(i) If the subject of the records cannot be contacted in person or by telephone within the twenty-four-hour period, the custodian shall send written notice via overnight mail to the subject of the records at his or her last known address. Either the custodian, requester, or the subject of the records may immediately seek an opinion from the Attorney General, who, within three (3) working days of receipt of the request, shall issue an opinion stating whether the decision is consistent with this chapter.
(ii) In the event of a review by the Attorney General, the custodian shall not disclose the records until the Attorney General has issued his or her opinion.
(C) However, nothing in this subsection shall be construed to prevent the requester or the subject of the records from seeking judicial review of the custodian's decision or the decision of the Attorney General.

(d)(1) Reasonable access to public records and reasonable comforts and facilities for the full exercise of the right to inspect and copy those records shall not be denied to any citizen.

(2)(A) Upon request and payment of a fee as provided in subdivision (d)(3) of this section, the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment.
(B) A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian's existing software.
(C) A custodian is not required to compile information or create a record in response to a request made under this section.
(3)(A)(i) Except as provided in § 25-19-109 or by law, any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.
(ii) The custodian may also charge the actual costs of mailing or transmitting the record by facsimile or other electronic means.
(iii) If the estimated fee exceeds twenty-five dollars ($25.00), the custodian may require the requester to pay that fee in advance.
(iv) Copies may be furnished without charge or at a reduced charge if the custodian determines that the records have been requested primarily for noncommercial purposes and that waiver or reduction of the fee is in the public interest.
(B) The custodian shall provide an itemized breakdown of charges under subdivision (d)(3)(A) of this section.

(e) If a public record is in active use or storage and therefore not available at the time a citizen asks to examine it, the custodian shall certify this fact in writing to the applicant and set a date and hour within three (3) working days at which time the record will be available for the exercise of the right given by this chapter.

(f)(1) 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 information.

(2) Any reasonably segregable portion of a record shall be provided after deletion of the exempt information.
(3) 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.
(4) If it is necessary to separate exempt from nonexempt information in order to permit a citizen to inspect, copy, or obtain copies of public records, the custodian shall bear the cost of the separation.

(g) Any computer hardware or software acquired by an entity subject to § 25- 19-103(5)(A) after July 1, 2001, shall be in full compliance with the requirements of this section and shall not impede public access to records in electronic form.

(h) Notwithstanding any Arkansas law to the contrary, at the conclusion of any investigation conducted by a state agency in pursuit of civil penalties against the subject of the investigation, any settlement agreement entered into by a state agency shall be deemed a public document for the purposes of this chapter. However, the provisions of this subsection shall not apply to any investigation or settlement agreement involving any state tax covered by the Arkansas Tax Procedure Act, § 26-18-101 et seq.

§ 25-19-106. Open public meetings

(a) Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.

(b)(1) The time and place of each regular meeting shall be furnished to anyone who requests the information.

(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 that cover regular meetings of the governing body and that 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.

(c)(1) Executive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee. The specific purpose of the executive session shall be announced in public before going into executive session.

(2)(A) Only the person holding the top administrative position in the public agency, department, or office involved, the immediate supervisor of the employee involved, and the employee may be present at the executive session when so requested by the governing body, board, commission, or other public body holding the executive session.
(B) Any person being interviewed for the top administrative position in the public agency, department, or office involved may be present at the executive session when so requested by the governing board, commission, or other public body holding the executive session.
(3) Executive sessions must never be called for the purpose of defeating the reason or the spirit of this chapter.
(4) No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation, or motion.
(5)(A) Boards and commissions of this state may meet in executive session for purposes of preparing examination materials and answers to examination materials that are administered to applicants for licensure from state agencies.
(B) Boards and commissions are excluded from this chapter for the administering of examinations to applicants for licensure.
(6)(A) Subject to the provisions of subdivision (c)(4) of this section, any public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security as described in § 25-19-105(b)(16).
(B) This subdivision (c)(6) shall expire on July 1, 2007.

§ 25-19-107. Aggrieved persons; relief available

(a) Any citizen denied the rights granted to him or her by this chapter may appeal immediately from the denial to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party, if an agency of the state is involved, or to any of the circuit courts of the appropriate judicial districts when an agency of a county, municipality, township, or school district, or a private organization supported by or expending public funds, is involved.

(b) Upon written application of the person denied the rights provided for in this chapter, or any interested party, it shall be mandatory upon the circuit court having jurisdiction to fix and assess a day the petition is to be heard within seven (7) days of the date of the application of the petitioner, and to hear and determine the case.

(c) Those who refuse to comply with the orders of the court shall be found guilty of contempt of court.

(d) In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney's fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust. However, no expenses shall be assessed against the State of Arkansas or any of its agencies or departments. If the defendant has substantially prevailed in the action, the court may assess expenses against the plaintiff only upon a finding that the action was initiated primarily for frivolous or dilatory purposes.

§ 25-19-108. Information for public guidance

(a) Each state agency, board, and commission shall prepare and make available:

(1) A description of its organization, including central and field offices, the general course and method of its operations, and the established locations, including, but not limited to, telephone numbers and street, mailing, electronic mail, and internet addresses and the methods by which the public may obtain access to public records;
(2) A list and general description of its records, including computer databases;
(3)(A) Its regulations, rules of procedure, any formally proposed changes, and all other written statements of policy or interpretations formulated, adopted, or used by the agency, board, or commission in the discharge of its functions.
(B)(i) Rules, regulations, and opinions used in this section shall refer only to substantive and material items that directly affect procedure and decision-making.
(ii) Personnel policies, procedures, and internal policies shall not be subject to the provisions of this section.
(iii) Surveys, polls, and fact-gathering for decision-making shall not be subject to the provisions of this section.
(iv) Statistical data furnished to a state agency shall be posted only after the agency has concluded its final compilation and result.
(4) All documents composing an administrative adjudication decision in a contested matter, except the parts of the decision that are expressly confidential under state or federal law; and
(5) Copies of all records, regardless of medium or format, released under § 25-19-105 which, because of the nature of their subject matter, the agency, board, or commission determines have become or are likely to become the subject of frequent requests for substantially the same records.

(b)(1) All materials made available by a state agency, board, or commission pursuant to subsection (a) of this section and created after July 1, 2003, shall be made publicly accessible, without charge, in electronic form via the Internet.

(2) It shall be a sufficient response to a request to inspect or copy the materials that they are available on the Internet at a specified location, unless the requester specifies another medium or format under § 25-19- 105(d)(2)(B).

§ 25-19-109. Special requests for electronic information

(a)(1) At his or her discretion, a custodian may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible.

(2) Where the cost and time involved in complying with the requests are relatively minimal, custodians should agree to provide the data as requested.

(b)(1) If the custodian agrees to a request, the custodian may charge the actual, verifiable costs of personnel time exceeding two (2) hours associated with the tasks, in addition to copying costs authorized by § 25-19- 105(d)(3).

(2) The charge for personnel time shall not exceed the salary of the lowest paid employee or contractor who, in the discretion of the custodian, has the necessary skill and training to respond to the request.

(c) The custodian shall provide an itemized breakdown of charges under subsection (b) of this section.
An informative attorney general opinion on subject:

Office of the Attorney General
State of Arkansas

Opinion No. 2003-376

*1 January 15, 2004

The Honorable Sue Madison
State Senator
573 Rock Cliff Road
Fayetteville, AR 72701

Dear Senator Madison:

I am writing in response to your request for an opinion on the Arkansas Freedom of Information Act (“FOIA”), which is codified at A.C.A. § 25-19-101 et seq. (Repl. 2002 and Supp. 2003). As background for your questions you state:
Recently three members of the University of Arkansas at Fayetteville Board of Trustees met with three faculty leaders to discuss changes in UA policy regarding transfers of D's earned elsewhere also known as the ‘D-rule.’ There was no indication given to the press for this meeting. The ‘D-rule’ policy was subsequently changed at the next board meeting.

Your specific questions are as follows:
1. Was the meeting between three members of the University of Arkansas Board of Trustees and the faculty leaders a violation of the state Freedom of Information Act?
2. If so, would a meeting with only two board members and faculty for the purpose of discussing upcoming board business also be considered a violation of the state Freedom of Information Act?
3. What are the consequences for violating the FOIA and what are the appropriate procedures for levying such consequences?


The question of whether a particular gathering of members of a governing body constitutes a “meeting” under the FOIA necessarily turns upon the circumstances of each case and consequently cannot be definitively resolved in an Attorney General opinion. I lack both the resources and the authority to decide such matters. Additionally, the question may properly be within the province of the prosecuting attorney, who has been vested with enforcement authority under the FOIA, and ultimately a court upon review. Accordingly, while the limited facts before me suggest a violation, I am not able to conclusively opine in response to your first question; nor can I offer a definitive response to your second hypothetical question. I will, however, set forth the general guiding legal principles for your review, after first discussing the potential consequences of a FOIA violation.

The FOIA provides for both criminal and civil penalties for violations of its provisions. Any person who “negligently violates” the FOIA is guilty of a misdemeanor, punishable by a fine of up to $200.00 and/or jail time, or community service and/or education. A.C.A. § 25-19-104 (Repl. 2003). As indicated above, cases must be initiated by the prosecuting attorney, who is invested with broad discretion in bringing such charges. See generally Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977). The FOIA also provides for a citizen's appeal of a denial of FOIA rights to the appropriate circuit court. A.C.A. § 25-19-107(a) (Repl. 2003). Those refusing to comply with court orders are guilty of contempt. Id. at subsection (c). The court can also assess fees and costs against a defendant, other than the state, in certain circumstances. Id. at subsection (d). Invalidation of action taken at an improperly conducted meeting is another possible consequence, although the court has required that the governing body be given an opportunity to correct the violation. See Rehab. Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, 285 Ark. 397, 687 S.W.2d 840 (1985). Accord, Romine v. Dept. Of Environmental Quali ty, 342 Ark. 380, 40 S.W.3d 731 (2000); National Park Med. Ctr., Inc. v. Arkansas DHS, 322 Ark. 595, 911 S.W.2d 250 (1995). That is, the board must be allowed to meet publicly and discuss the issues that it had previously discussed privately. Additionally, action will be invalidated only if the plaintiff seeks to enforce a public right and if the violation was substantial and knowingly made. Id.

*2 Other additional remedies may be available through the courts, depending upon the particular circumstances. Declaratory judgments have been held a proper remedy to enforce FOIA rights. See Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975). But there is some indication that a plaintiff would have to exhaust administrative remedies prior to using this avenue of relief. See Nat'l Park Med. Center v. DHS, 333 Ark. 595, 911 S.W.2d 250 (1995). Mandamus may also be an appropriate remedy. See generally Arkansas State Police Comm. v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1072) (meetings) and Boyd v. Keith, 330 Ark. 626, 954 S.W.2d 942 (1997) (records).

Turning then to the general principles surrounding the FOIA's open meetings requirement, the FOIA applies to “all meetings, formal or informal, special or regular, of... all boards, bureaus, commissions, or organizations of the State of Arkansas....” A.C.A. § 25-19-106(a) (Supp. 2003). A “meeting” for purposes of the FOIA is any gathering of a governing body at which the body discusses official business on which foreseeable action might be taken. See El Dorado Mayor v. El Dorado Broadcasting Co., 260 Ark. 821, 824, 544 S.W.2d 206 (1976). A quorum of the body is not necessary in order for the gathering to constitute a meeting. Id. As a general matter, consistent with previous opinions of this office, it is my opinion that the number in attendance is not alone determinative of whether a “meeting” has occurred for purposes of the FOIA. See Op. Att'y Gen. 2001-065 (and opinions cited therein). Rather, consideration must be given to all of the surrounding circumstances, with a particular eye toward potential evasion of the open meeting requirement. Id.

Based on these principles, it is my opinion that a violation is clearly suggested by the facts presented under your first question, where three members of the Board of Trustees (“Board”) met to discuss matters that would foreseeably be acted upon by the Board. Although the number of members is not determinative, three members gathering for discussions of this nature is strong evidence of a “meeting” as contemplated by El Dorado Broadcasting Co., supra, 260 Ark. at 824 (noting in dicta that the trial court's order applied to “any group meeting... at which members... less in number than a quorum meet for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken....”).

Your second question, regarding two Board members and faculty discussing upcoming Board business, cannot satisfactorily be addressed in the limited format of this opinion. This may or may not make a “meeting,” in my opinion, depending upon all of the facts and circumstances. See generally Op. Att'y Gen. Nos. 99-018 and 96-317 (addressing possible scenarios involving discussions of public business by two members of a governing body). As stated by one of my predecessors, “[u]ntil the Arkansas Supreme Court is squarely faced with the question, or the legislature clarifies this issue, there can be no hard and fast rule that two members of a governing body either do or do not always make a meeting under the FOIA.” Op. Att'y Gen. 2000-096.

*3 In conclusion, the question of whether a “meeting” was held, for purposes of the FOIA, under any particular scenario, demands a review of all surrounding facts and is not susceptible to any conclusive resolution in an opinion from this office. As noted above, enforcement authority resides in the prosecuting attorney. Those seeking redress may also avail themselves of the civil remedies discussed above.



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