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Research Corner
A legislative recap: public records and publication responsibilites of counties
This legislative session, advocates and policy makers pushed legislation that would make changes to the responsibilities of Arkansas counties in regards to public records, publication of delinquent taxes, and responsibilities under the Arkansas Freedom of Information Act (FOIA). Though not all of these bills were passed, the presence of these ideas represents trends that may come back up in the 2019 legislative session and represent potential changes in the future. This article serves as an update of changes that were enacted and will soon take effect, as well as a discussion of bills not passed, but representing ideas that may gain traction in the future.
Publication by County Officials
1. Publication of Ordinances
Under the current law, unless otherwise specified in a specific statute in question, when a county government is required to publish, this publication is satisfied by a one-time insertion in a newspaper of general circulation within the county, governed by Ark. Code Ann. § 14-14-104. If the county has no newspaper of general circulation, publication may be made by posting in three public places that have been designated by ordinance.
In specific instances in which a county is required to publish notice of a hearing or other official act, this notice should be published two times with at least six days separating each publication, as per Ark. Code Ann. § 14-14105. This notice should contain the date, time and place at which the hearing or other action will occur, a brief statement of the action to be taken, and any other information which may be required by the specific provision of the law requiring notice.
House Bill 1836 filed in the 2017 legislative session by Rep. Karilyn Brown would have made changes to the methods allowed for publication. First, the bill would have amended § 14-14-104 to allow counties to choose whether to publish in a newspaper of circulation in the county or to publish on a website owned by or affiliated with the county, as long as the publication was also posted in three public places designated by ordinance. Next, House Bill 1836 would also have amended the notice by publication requirement, § 14-14-105, by allowing counties to again choose between publishing in a newspaper of circulation in the county or publication for 14 consecutive days on a website owned by or affiliated with the county, as long as the notice was also posted in three public places designated by ordinance. Finally, this bill would have amended the requirement — found in § 1414-903(d)(1) — that every five years, a uniform code of county ordinances be compiled and published. This bill, if passed, would have required this compilation to be published to a website owned by or affiliated with the county.
Although this bill was not passed in the 2017 session, its presence reflects the overarching trend of digital integration. The push to allow counties to publish notices and ordinances online may gain strength in the 2019 legislative session and in the future.
2. Publication of Delinquent Taxes on Real Property and Mineral Interests by County Taxpayers
A new addition to the law adds a requirement for the content of tax bills. Senate Bill 114 (now Act 514) sponsored by Sen. Bart Hester and Rep. Kim Hammer adds a requirement for the content of tax bills. Under current law, the following information is required to be included on each tax bill sent by the county collector to property taxpayers: the sum of the millage rates levied by each taxing unit, the percentage of the full value of the property that the sum of the millage rate levies represents, and the total amount due and billed under Ark. Code Ann. § 26-23-204. Now, the county’s website address must also be included on the bill.
Under current Arkansas law, county collectors prepare a list of delinquent lands in their respective counties and deliver a copy of this list to a newspaper of the county by Dec. 1 of each year, as required by Ark. Code Ann. § 26-37-107. The newspaper publishes this list within seven days of delivery. The publication fee is set at $1.50 per tract of land. This fee is added as costs of forfeiture and is paid by the county collector from funds in the collector’s possession from the payment of real property taxes. The collector then is entitled to a credit for the amount paid. It should be noted that as a result of a bill passed during the 2017 legislative session, these guidelines do not apply to delinquent taxes on mineral interests, which should comply with the requirements in § 26-36-107, and are discussed in detail below.
a. Delinquent Minerals
For tax years beginning on or after Jan. 1, 2017, the notification guidelines will change for delinquent mineral in-
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terests, pursuant to Act 514. Instead, the county collector will prepare a list of the delinquent taxes on mineral interests in the county, and provide the list to the Association of Arkansas Counties (AAC) by Dec. 1 of each year. This list should include the following information: (1) the name and last known address of the owner of the mineral interests; (2) the applicable well name, uncontrolled lease name, or unitized area name as recognized by the Oil and Gas Commission; (3) the county, section, township and range of the property containing the mineral interests; (4) notice of the penalty provided; and (5) notice that the county collector may seek collection if the property taxes, penalties and interest remain unpaid after Dec. 1. With this information, the AAC will create a website accessible by the public and dedicated to publishing notice of delinquent taxes on mineral interests. This information will be published on the website within seven days of receipt.
County collectors should continue to publish notice in the newspaper that circulates in the county, and this notice should provide the website at which the delinquent mineral interest tax list may be found. Additionally, the county collector should publish notice at the courthouse and provide notice through the county website.
Supporters look forward to these changes making the delinquent mineral process much easier for Arkansas counties. Van Buren County Collector Lisa Nunley predicts this new development will save her county approximately $20,000 per year.
“It’s great because I know it’s going to save this county a lot of money,” she said.
Cindy Walker, Columbia County collector and past president of the Arkansas County Tax Collectors Association, echoes this prediction.
State Auditor Andrea Lea was a strong supporter of this bill. In 2015, her office asked the legislature to amend the law to allow online publication of unclaimed property. Before she was elected auditor, the state auditor’s office typically spent more than $200,000 to place print ads for unclaimed property. See “RESPONSIBILITIES” on Page 16 >>>
“My goal was to make it easier for people to have access to the information and get their property back. I wanted to reach people on a medium they constantly use,” Auditor Lea said. After this bill passed, her office saw big changes. “In 2016, my office spent around $100,000 on print ads, and we were able to return 5,000 more properties than in years past. I am grateful to the legislature for freeing up my hands and allowing my office to work so much more efficiently,” she said. The AAC is grateful for Auditor Lea’s assistance in getting the delinquent minerals publication bill passed in order to help streamline the process in the future. “This will have a huge impact on counties that are oil- or gas-producing counties ... Its imb. Delinquent Personal Property Taxes The procedures for publishing delinquent personal pact will be huge for years to come. This is the way of the property taxes remain future. People don’t read newspapers anymore.” unchanged after this legislative session. County collectors should prepare a list — Columbia County Collector Cindy Walker on Act of delinquent personal property taxes and 514 of 2017 deliver a copy of this list to a legal newspaper of the county no later than Dec. 1 of each year, according to Ark. Code Ann. § 26-36-203. The newspaper should publish this list within seven days of receipt, and shall receive $1.25 per name, per insertion. This is combined with the $0.50 per name for the county collector preparing and furnishing the list. This combined amount should be charged to the delinquent taxpayer and paid by the county collector from any funds derived from payment of personal property taxes. The county collector will be entitled to a credit for the funds paid.
3. Notice by County Official Under Title 16 — Reasonable Costs
While the procedures for collectors who are required to publish notice for delinquent taxes are well-established, the costs for circuit clerks publishing notice of legal matters are not as established. Advertisements and orders of publication required by law or order of any court, or in conformity with any deed of trust, real estate mortgage, or chattel mortgage over $350, should be published in at least one newspaper circulating in the county, provided by Ark. Code Ann. § 16-3-101. For amounts less than $350, notices may be posted in five conspicuous places in the county. Unless
Responsibilities
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another time is given, the notice should run for one week, per Ark. Code Ann. § 16-3-102.
Differences emerge when looking at payment for these notices. According to Ark. Code Ann. § 16-3-103, payment for the notice should be paid for by the party at whose instance it was published. This payment, “or so much as deemed reasonable,” may be taxed as other costs otherwise allowed by the proper courts in the course of the proceedings to which the advertisement relates. The only guidance given to what constitutes as “reasonable,” however, is a requirement that a newspaper may not receive more than its regular classified advertising rate for publications. It may be helpful in the future for legislators to provide more guidance or more uniform requirements between notice requirements of county collectors and circuit clerks.
Public Records of County Officials
1. Records Available to the Public Generally
The current law on public records, Ark. Code Ann. § 1414-110, requires that records and written materials in the possession of a local government shall be available for inspection and copying by any person during normal office hours. However, personal records, medical records and other records relating to individual privacy are not available to the public unless the individual requests they be made available.
2. Production of Public Records Under FOIA
In 1967, Congress enacted the Freedom of Information Act (FOIA) in order to make federal government records available to the public. The same year, Arkansas passed similar legislation to make state records available to the public. The purpose of these laws is to promote transparency in government. In some circumstances, however, complying with these laws can greatly burden public officials and prevent them from being able to exercise their duties elsewhere. For this reason, specific exceptions to the laws exist – two potential exceptions considered in this session are discussed below.
a. Overly Burdensome Productions
Several surrounding states, such as Kansas, Kentucky and Texas, provide a method of dealing with overly burdensome requests from the public. For example, if a public agency receives a request that is overly broad or unduly burdensome, the public records custodian is typically required to negotiate with the person to narrow his or her request. Public agencies are allowed to charge requestors reasonable fees to help cover the cost of providing the public records. If attempts to narrow the request or charge reasonable fees do not resolve the issue, FOIA laws usually allow the agency to deny the request. Every state provides the requestor a means of appealing a denial for a public records request, and unless there is a statutory exemption for the public records, the public agency usually has the burden of proving that the denial was justified. Some states require the public agency to meet a higher burden of proof than others.
Arkansas law does not provide any exceptions for unduly burdensome requests. As the law stands right now, public officials have three days to comply with any public records request, regardless of how much time or man power it may require to produce the documents. The consequences are severe; public officials may face criminal or civil penalties under Ark. Code Ann. §§ 25-19-104 and 107. The majority of states surrounding Arkansas — including Texas, Oklahoma, Mississippi and Missouri — allow longer periods to respond. Only Louisiana has the same time frame — three business days — as Arkansas to respond to a request. Both Mississippi and Tennessee must respond in seven days, while Texas must provide notice of when it will reasonably respond if not able to do so in 10 days. Oklahoma must only respond promptly. While Missouri should respond in three business days, this time frame may be lengthened by written notice.
Here in Arkansas, Rep. Bob Johnson and Sen. Jane English proposed House Bill 1622. If passed, this bill would have allowed a public entity more time to comply with a request considered to be unduly burdensome. The public records custodian would have had to provide an explanation to the requestor about why there was a delay in responding to his or her request and an expected date of compliance. This provision would have given public officials the flexibility they need from time to time to divert resources and man power to comply with a request for an extraordinary quantity of public records. The bill would not have allowed an official to deny a request, and it would have maintained the civil and criminal penalties already in place. Unfortunately, this bill did not pass, but may be an indication of future flexibility for response time for county officials in FOIA compliance.
Even though an increase in the time of production was not provided this session, a step toward progress was made by the passage of another bill sponsored by Rep. Johnson and Sen. English. House Bill 1623 (now Act 1107) will allow the recipient of a FOIA request to refer the requester to the respective county’s website if the information is already available there. This allowance will be useful for electronic records kept online like police reports, public court records, and data published by the county assessor or collector. Though more progress is needed to continue to alleviate some of the burden from county officials in some circumstances, this enacted bill is a step in the right direction.
b. Attorney Client Exception
This legislative session, Sen. Bart Hester proposed a bill that would have exempted attorney-client communications and attorney work product from FOIA requests (Senate Bill 373). In the course of an attorney-client relationship, communications between an attorney and his or her client are kept confidential to facilitate openness, honesty and trust. When an attorney prepares documents, especially when he or she jots down strategies and thought processes, it is considered his or her work product. In a typical lawsuit between private parties, attorney-client communications and attorney work product are not subject to discovery, or disclosure to the other party in the lawsuit. Under Arkansas’ FOIA laws, however, attorney-client communications and attorney work product are available to the public. That means that in a lawsuit in which one or more of the parties is a public entity or a public official, the opposing party, who would not otherwise be able to have access to such privileged information, is able to obtain attorney-client documents and communications by filing an FOIA request. This puts public entities and public officials at a disadvantage when they face private parties in court. Ultimately, the bill failed in the Senate. However, strong support for such exemptions to prevent the abuse of FOIA will certainly be discussed in upcoming legislative sessions.
Looking Forward
The biggest gain for Arkansas counties in regard to public records, publication requirements and responsibilities under FOIA was the passage of Act 514, saving gas and oil producing counties thousands of dollars per year and providing for online publication of delinquent minerals. Supporters have high hopes of the option for online notice publication to continue to gain traction in legislative sessions to come. Additionally, uniform clarity of other types of notice publication would prove useful. While bills to provide much-needed relief for county officials working to comply with FOIA requests failed in this session, these ideas will likely continue to gain momentum in the future. Simple alterations, such as the extension of the three day time frame for officials, or the exclusion of attorney-client privileged communication and work product, would raise the bar in pursuing the mission of government transparency. Finally, as reflected by the passage of House Bill 1823, now Act 960 (sponsored by Rep. Charlie Collins), electronic trends are the way of the future — counties will see more and more electronic publishing requirements and should embrace the tools of technology in producing inclusive and effective governance of Arkansas counties.
