Recent Developments Under the Public Records Provisions of the Arkansas Freedom of Information Act
By Clayborne S. Stone and Alex T. Gray For over 45 years, the Arkansas Freedom of Information Act (“FOIA” or the “Act”) has been used, as intended, by citizens of Arkansas, including the press, seeking access to public records. The Act contains a policy statement, which provides: 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.1 In order to carry out the policy behind the FOIA, the Arkansas Supreme Court liberally interprets the Act “to accomplish its broad and laudable purpose that public business be performed in an open and public manner.”2 And the court broadly construes the Act in favor of disclosure.3 With respect to access to public records, the FOIA is relatively straightforward. The Act provides that “[e]xcept 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
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Arkansas during the regular business hours of the custodian of the records.”4 “A citizen may make a request to [a covered entity’s] custodian [of records] to inspect, copy, or receive copies of public records.”5 Upon a proper request and payment of a statutorily prescribed fee, “the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment.”6 If the devil is in the details, under the FOIA, he resides in the definition of “public records.” The FOIA defines “public records” as: 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.7 A public record is subject to the FOIA and available to the public if it is “possessed by an entity covered by the act, fall[s] within the act’s definition of public record, and [is] not Clayborne S. Stone and Alex T. Gray are attorneys with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in Little Rock. Mr. Stone and Mr. Gray regularly advise clients regarding compliance with and the proper use of the Arkansas Freedom of Information Act.
. . . exempted by the act or other statutes.”8 Several recent Arkansas Supreme Court cases provide guidance to the public regarding whether an entity is subject to the Act, what records are subject to disclosure and the procedure for obtaining those records, and a custodian’s obligations to timely and fully respond to a request. When may a private entity be required to disclose public records? Nabholz Construction Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007) Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180 In 2006, an entity called the Contractors for Public Protection Association (“CFPPA”) requested documents from the University of Arkansas related to the expenditure of public funds for the erection of several buildings by the University. The University supplied many, but not all, of the documents requested by CFPPA. With respect to CFPPA’s specific request for “supporting documentation for the pricing of all contract and change orders,” the University informed CFPPA that those documents, if any, would be maintained by Nabholz Construction Corporation (“Nabholz”), the University’s general contractor, and not in the University’s files. CFPPA subsequently requested the documents from Nabholz directly, but Nabholz refused to release them. CFPPA then sued Nabholz under the FOIA, but CFPPA did not name the University as a defendant. The trial court ordered Nabholz to release the records at issue. As noted above, for a record to be subject to the FOIA and available to the public, it must (1) be possessed by an entity covered by the Act, (2) fall within the Act’s definition of a public record, and (3) not be exempted by the Act or other statutes. The Arkansas Supreme Court reversed the