The Arkansas Freedom of Information Act (“FOIA”), Ark. Code Ann. § § 25-19-101 to 25-19-109, was enacted in 1967 at the behest of Governor Winthrop Rockefeller and the state’s journalism community. At his last press conference, Governor Rockefeller described the FOIA as his “proudest achievement” in office.
Prior to the act’s passage, Arkansas law regarding access to government records and meetings was not well developed. While scattered sections of the Arkansas code provided for public inspection of certain records, there existed no comprehensive provision permitting access to documents held by state or local bodies. Nor was the common law much help, for the judicial decisions dealt principally with election records required by statute to be open to the public. Two cases, however, took a surprisingly broad view of the common law right of access to records. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940); Republican Party of Arkansas v. State ex rel. Hall, 240 Ark. 545, 400 S.W.2d 660 (1966).
With respect to open meetings, state common law prior to enactment of the FOIA was nonexistent, but constitutional and statutory provisions afforded some access. Article V, Section 13 of the Arkansas Constitution of 1874, which remains in effect today, provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” The secrecy exception is obviously large enough to swallow the rule of openness, and the provision does not apply to legislative committees, state agencies, or local government bodies. The first open meetings statute, passed in 1947 and amended in 1949, did not extend beyond the state level and had various other shortcomings. A broader statute reaching such political subdivisions as cities, counties, and school districts was passed in 1953, but it contained a broad exception permitting closed meetings and penalty provisions applicable only in the event of willful violations. As a result, it, too, was relatively ineffective.
Several factors coalesced in the mid-1960s to bring about enactment of the FOIA: a campaign by state journalists, notably the Little Rock chapter of Sigma Delta Chi; a study by the Arkansas Legislative Council comparing state access laws with those of other jurisdictions; controversial closed meetings by government bodies; unfavorable Attorney General’s opinions interpreting the 1953 open meetings statute; organizational efforts by the state Republican Party, including successful litigation to obtain access to voting records; the Hall case cited above, in which the Arkansas Supreme Court indicated its willingness to recognize an expansive common law right of access to public records; and the election of Winthrop Rockefeller as governor.
The bill that became the Arkansas FOIA was drafted by the Little Rock chapter of Sigma Delta Chi and was based in part on statutes in other states and a model act prepared by the national Sigma Delta Chi organization. Governor Rockefeller signed the bill into law — Act 93 of 1967 — on Valentine’s Day, commenting that “this is an historic bill, and it may well be a model bill for other states.” The FOIA has been amended sixteen times since its enactment, most recently in 2001. None of the amendments has significantly weakened the act, and many were in response to judicial decisions or to specific problems that were not anticipated when the FOIA was initially passed. Act 1653 of 2001 addressed access to electronic records and provided welcome clarity with respect to other issues.
On numerous occasions, the General Assembly has enacted separate statutes creating specific exemptions rather than amend the FOIA itself. For example, in 1987 the legislature passed a statute designed to overturn an Arkansas Supreme Court decision holding that certain corporate tax records were not exempt from disclosure under the FOIA. See Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). A bill amending the Tax Procedure Act to exempt from public disclosure “all tax returns, . . . whether filed by individuals, corporations, partnerships or fiduciaries,” was passed over the vocal opposition of the news media. This provision was amended in 1991 to permit access to records that reflect the name of a taxpayer and the amount of any tax credit, rebate, discount, or commission for the collection of a tax received by the taxpayer under specified state tax statutes. See Ark. Code Ann. § 26-18-303.
In 1999, the legislature created the Electronic Records Study Commission to examine the Arkansas Freedom of Information Act and recommend amendments to update the FOIA for the electronic age. The commission completed its work in time for the 2001 session of the General Assembly, and the vast majority of the commission’s recommendations, as variously amended during the legislative process, were enacted into law by Act 1653 of 2001. These changes clarify the FOIA on many, though certainly not all, issues surrounding electronic access. See infra part III.
For additional information about the Arkansas FOIA, see the following sources: Office of the Attorney General, Arkansas Freedom of Information Handbook (11th ed. 2003); Watkins & Peltz, The Arkansas Freedom of Information Act (M&M Press, 4th ed. 2004); Brooks, “Adventures in Cyberspace: Computer Technology and the Arkansas Freedom of Information Act,” 17 UALR L.J. 417 (1995); Watkins, “Access to Public Records under the Arkansas Freedom of Information Act,” 37 Ark. L. Rev. 741 (1984); Watkins, “Open Meetings under the Arkansas Freedom of Information Act,” 38 Ark. L. Rev. 268 (1984); Watkins, “The Arkansas Freedom of Information Act: Time for a Change,” 44 Ark. L. Rev. 535 (1991); Watkins, “Adventures in FOIA Land, 1999 Ark. L. Notes 111; Note, 1 UALR L.J. 230 (1978); Note, 40 Ark. L. Rev. 899 (1987); Note, 12 UALR L.J. 423 (1989-90); Note, 13 UALR L.J. 725 (1991).