Spring 2016 County Lines

Page 16

AAC

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Arkansas ‘Sunshine Law’ among the broadest in the nation

T

he “public records” provisions of the Arkansas Freedom of Information Act (FOIA) are among the most sweeping in the country, making the eligible Arkansas government and public offices some of the most transparent. Its broad definition of what constitutes a public record, along with its rigid three-day maximum response time, make the inner workings of Arkansas public and government offices among the most accessible in the country. The Arkansas FOIA, first passed in 1967 upon the signature of Gov. Winthrop Rockefeller, allows any citizen of the state of Arkansas the right to inspect and copy qualifying public records by submitting a request to the custodian of the records. The drafters of FOIA recognized that “[i]t 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,” and passed a broad, sweeping transparency act to meet this need. The Act has since been heavily amended in response to privacy, public safety and other concerns. What is a “public record?” For FOIA purposes, a “public record” is defined 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 or improvement district that is 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. FOIA then sets forth 23 exemptions that are not considered “public records,” including personnel records that might warrant an invasion of privacy and records related to open criminal investigations, among others [ACA § 25-19-105(b)(2014 & Supp. 2015)]. These exemptions are narrow in scope, and if a request does not fall squarely within one of the exemptions, it is subject to disclosure. Furthermore, requests that are ambiguous or fall in the “gray area” should be interpreted in favor of disclosure. E-mails, as well as other written or recorded communications that are reasonably related to the scope of a public official or employee’s employment are subject to disclosure. The fact that an e-mail is sent from an official or personal e-mail account, or is sent or received on a work or personal computer, makes no difference. It is the subject of the record that determines whether the record should be disclosed. The fact that a record may include 16

Legal Corner

some exempt information does not exempt an entire record; exempt information should be redacted, and the rest of the document produced at a citizen’s request. Who may request a public record, and how may a person request it? LINDSEY BAILEY “Any citizen of the state of ArkanGeneral Counsel sas” may request to inspect and copy records, including any Arkansas corporation. Similar in-state residency requirements have been challenged in the courts in other circuits. While the Third Circuit Court of Appeals (a circuit that is non-binding on the courts of Arkansas) struck down Delaware’s residency requirement as unconstitutional in 2006, the U.S. Supreme Court in 2013 effectively overruled the Third Circuit by unanimously ruling that “Virginia’s citizens-only FOIA provision neither abridges any ... fundamental privileges and immunities nor impermissibly regulates commerce” [McBurney v. Young, 133 S. Ct. 1709 (2013)]. Therefore, under current case law, the residence requirement to request public records under Arkansas FOIA stands. A citizen should direct his request to inspect public records to the “custodian” of the public records. The custodian is defined as “the person having administrative control of that record,” and not a “person who holds public records solely for the purposes of storage, safekeeping or data processing for others.” A request may be directed to the custodian of records either in person, by telephone, fax, e-mail, letter, or via the Internet if the custodian has created an avenue for online inquiries. Duties of the custodian upon receiving a request for public records Arkansas FOIA allows a citizen to inspect and copy any public records held by a qualifying custodian; however, the law does not require a custodian to compile a record that does not already exist. Additionally, a custodian cannot be compelled to convert an existing record into a requested format for which conversion is not relatively simple or the required equipment readily available. The custodian can also charge the requester for the actual cost of producing copies of public records, including paper, ink, mailing, and machine maintenance costs, but may not charge for the cost of personnel time (there is a narrow exception that allows a custodian to charge for personnel time if electronic records that take more than two hours to process are requested). If this charge See

“PUBLIC RECORDS” on

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COUNTY LINES, SPRING 2016


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