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Tuesday, Oct. 25, 2016

Reviewing the state's open government law

Thursday, January 10, 2013

Forgive me if this sounds familiar.

I wrote something similar last summer, but it seems worthy of bringing up again given new local leaders have now taken office.

The Arkansas Freedom of Information Act is vital to ensuring an open, transparent government.

FOIA is a tool used by the news media to keep the public informed of the public's business, but it is not exclusively for the media.

The law is also there for Joe Citizen to get a copy of a police report, to be notified of public meetings at least two hours in advance, to look at financial figures, etc.

Newcomers to office may not know that FOIA has certain requirements of them. For instance, they may be unaware that if two city council members go to lunch together to discuss a potential action, that could be deemed a public meeting with the same requirements as a regular committee meeting or council meeting.

The entire FOIA handbook is available at http://www.arkansaspress.org/publication..., but here are a few general questions and answers from the handbook.

Q. Who is Subject to the FOIA?

A. All governmental entities are subject to the FOIA. And a private entity is subject to the FOIA if it received public funds and is intertwined with the activities of government.

Q. Who may obtain records?

A. "Any citizen of the State of Arkansas" may inspect and copy public records. "Citizen" includes corporations. A requester's purpose or motive in seeking access to particular records is irrelevant. Nothing in the FOIA restricts the subsequent use of information obtained under the act.

Q. What records are subject to the act?

A. Any record "required by law to be kept or otherwise kept and that constitutes a record of the performance or lack of performance of official functions" is a public record. Further, "all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records." The FOIA covers both records created by an agency and those received from third parties. The physical form of the record is unimportant, as the FOIA applies to "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium."

Q. What records are exempt from disclosure?

A. The FOIA lists 18 specific exemptions, plus a catch-all exemption that incorporates the confidentiality provisions of other statutes. If a public record does not fall squarely within an exemption, it must be disclosed. Exemptions must be narrowly construed. Unclear or ambiguous exemptions will be interpreted in a manner favoring disclosure. At the same time, the court will balance the interests between disclosure and nondisclosure using a common-sense approach. ADFA v. Pharmacy Assoc., 333 Ark. 451, 970 S.W.2d 217 (1998). If a record contains both exempt and nonexempt information, it must be made available for public inspection with the exempt material deleted or redacted.

Q. How does one request records?

A. The request should be directed to the "custodian of the records." It need not be in writing, though a written request is advisable, because it provides a record if litigation becomes necessary. The request must be specific enough for the custodian to locate the records with reasonable effort.

Q. Does the request have to be made in person?

A. No. It can be made in person or by telephone, fax, mail, email or via the Internet if the custodian has created an online form for that purpose.

Q. When must the agency respond?

A. Records must be made available immediately unless in active use or storage, in which case they must be made available within three working days of the request. Requests for personnel records and employee evaluation records must be acted upon within 24 hours of the custodian's receipt of the request. During that same period, the custodian must make all practicable efforts to notify the person making the request and the subject of the records of the custodian's decision regarding personnel or evaluation records. The custodian, requester, or subject of the records may seek an Attorney General's opinion on whether the custodian's decision regarding personnel or evaluation records is consistent with the act.

Q. Is the custodian required to furnish copies of public records?

A. Yes, for a fee, if the custodian has the necessary duplicating equipment.

Q. What fee may be charged?

A. Copy charges cannot exceed actual reproduction costs, and the custodian must provide an itemized breakdown of the charges. The charges can include actual costs of mailing or faxing or emailing the records.

Q. Can the custodian waive the fee?

A. Yes, if it is determined that the records are requested primarily for noncommercial purposes and that the waiver is in the public interest.

Q. Who may attend public meetings?

A. Because meetings "shall be public," any person may attend.

Q. What is a meeting?

A. Any meeting, formal or informal, regular or special, of a governing body including sub-bodies. A quorum of the governing body need not be present for the meeting to be subject to the FOIA. If two members meet informally to discuss past or pending business, that meeting may be subject to the FOIA. This question will turn on the facts of each case.

Q. May private citizens request notification of meeting times of public boards?

A. Yes, as to regular meetings. Notice of emergency or special meetings is only provided to news media that have requested notice.

Q. What meetings are exempt from the FOIA?

A. An executive session may be held "for the purpose of considering employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee." In contrast, an executive session to consider general salary matters, an across the board pay increase, or the overall performance of employees as a group is not permissible. An executive session may also be held by state licensing boards and commissions "for purposes of preparing examination materials and answers to examination materials," and for "administering examinations."

Q. Who may attend an executive session?

A. Only the top administrator in an agency, the employee's immediate supervisor, the employee in question, and any person being interviewed for the top administrative position in the agency involved. Neither the agency's attorney nor the employee's attorney may attend an executive session.

Q. When does the action discussed in an executive session become legal?

A. When the governing body involved ratifies the action with a public vote in open session following the executive session. If no public vote is taken, any decision reached in closed session has no legal effect.

Q. How does one challenge an agency's action?

A. "Any citizen denied the rights granted to him may appeal immediately from the denial" to an appropriate circuit court, which may issue "orders" to enforce the act.

Q. Is the violation of the FOIA a criminal offense?

A. A person who "negligently violates" the FOIA is guilty of a Class C misdemeanor.


Mark Brasfield
Mark Brasfield is general manager for the Courier News.
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