B. Any other statutory requirements for closed or open meetings.

(1) Like the open records provisions of the FOIA, the act’s open meeting section incorporates other statutes that permit or require closed meetings. Under Ark. Code Ann. § 25-19-106(a), meetings must be open to the public “[e]xcept as otherwise specifically provided by law.” The phrase “by law” has been interpreted to mean “by statute,” and the statute must be specific in creating the exemption. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (statute creating an evidentiary privilege for attorney-client communications is not an exemption that would allow a governing body to meet with its attorney in private). See also Ark. Op. Att’y Gen. No. 2001-040 (Ark. Code Ann. § 11-10-314(a)(1), which provides that “information obtained by the Director of the Arkansas Employment Security Department . . . shall be held confidential,” does not authorize closed meetings); Ark. Op. Att’y Gen. No. 97-298 (Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, neither qualifies as an exemption nor supersedes the FOIA under the Supremacy Clause).

(2) Hundreds of Arkansas statutes make some reference to public hearings or public meetings, but most either state simply that an entity is to conduct its business in public, e.g., Ark. Code Ann. § 23-110-203(a)(1) (Arkansas Racing Commission), or set forth an agency’s obligation to hold meetings without specifying whether they are to be open or closed, e.g., Ark. Code Ann. § 3-2-201(e) (Alcoholic Beverage Control Board). Under these statutes, the FOIA plainly demands an open meeting unless the personnel exemption or another statutory exemption applies.

(3) More than a dozen statutes qualify as exemptions to the FOIA. Also, the constitution specifically gives discretion to both houses of the legislature and committees of the whole to meet in private “when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. Exemptions enacted after June 30, 2009 must cite the FOIA. Ark. Code Ann. § 25-19-110. Illustrative statutes include:

(a) Ark. Code Ann. § 2-7-202(c) (mediation sessions conducted by Arkansas Farm Mediation Office).

(b) Ark. Code Ann. § 6-18-507(d)(2) (school boards may meet in executive session in student expulsion cases “if requested by the parent or guardian of the student”). See Ark. Op. Att’y Gen. Nos. 96-009, 87-478. As amended in 1997, Section 6-18-507 draws a distinction between a suspension from school (dismissal not to exceed 10 days) and an expulsion (dismissal for more than 10 days). The provision for closed meetings appears in paragraph (d), which deals with expulsions. A circuit court has held that the statute “provides for an executive session only in the case of expulsion hearings” and that a school board must meet in public when considering an appeal from a student who has been suspended. Troutt Brothers Inc. v. Valley View School Dist., No. CIV-2000-343(F) (Craighead County Cir. Ct., July 2, 2000).

(c) Ark. Code Ann. § 8-7-1012(c) (administrative hearings conducted by Department of Labor under Public Employees’ Chemical Right to Know Act).

(d) Ark. Code Ann. § 10-3-305(a) (meetings of Legislative Council).

(e) Ark. Code Ann. § 14-14-109(a)(2) (county quorum court meetings involving personnel). See Ark. Op. Att’y Gen. No. 97-080.

(f) Ark. Code Ann. § 16-10-404(b)(2) (preliminary proceedings of Judicial Discipline and Disability Commission are confidential, and commission members may deliberate in executive session at the close of public hearings). If a judge waives the statutory right to a closed probable-cause hearing, then the hearing must be public. Griffen v. Arkansas Judicial Discipline and Disability Comm’n, 368 Ark. 557, 247 S.W.3d 816 (2007).

(g) Ark. Code Ann. § 16-46-105(a) (meetings of hospital medical review committees are exempt from the FOIA). A previous version of this statute had been held insufficiently specific to qualify as an FOIA exemption, Baxter County Newspapers Inc. v. Medical Staff of Baxter Gen. Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981), but the amended statute passes muster. Ark. Op. Att’y Gen. No. 2000-271.

(h) Ark. Code Ann. § 17-14-205(b) (disciplinary hearings conducted by Appraiser Licensing and Certification Board).

(i) Ark. Code Ann. § 23-2-316(b) (proceedings of Public Service Commission).

(j) Ark. Code Ann. § 23-42-203(e) (hearings held by Securities Commissioner).

(k) Ark. Code Ann. § 23-51-112(a) (hearings held by Bank Commissioner under Trust Institutions Act must be closed with respect to “a matter made confidential by law”).

(l) Ark. Code Ann. § 23-90-107(b)(3) (meetings of Arkansas Property & Casualty Advisory Association).

(m) Ark. Code Ann. § 25-17-208(b) (meetings to consider certain personnel matters by state boards and commissions whose members receive no compensation). See Ark. Op. Att’y Gen. No. 96-317.

(4) If an executive session is held pursuant to one of these statutes, the governing body may presumably permit anyone to attend, unless the statute provides otherwise. The provisions of Ark. Code Ann. § 25-19-106(c)(2) specifying those persons who may attend a closed meeting apply only to executive sessions under the personnel exemption. See Ark. Op. Att’y Gen. No. 96-009. But see Ark. Op. Att’y Gen. No. 87-478. Similarly, the requirement that the purpose of the executive session be announced appears only in the statutory provision covering the personnel exemption, Ark. Code Ann. § 25-19-106(c)(1), and is therefore not applicable when the executive session is held pursuant to another statute.

(5) A statute may prohibit executive sessions of any type. E.g., Ark. Code Ann. § 14-250-110(d) (board of directors of wastewater treatment district “shall at no time go into executive session”). See Ark. Op. Att’y Gen. No. 87-470 (1988) (interpreting Ark. Code Ann. § 14-116-308(d), since renumbered as § 14-116-308(d)(1) and limited by Act 1210 of 2003, codified as § 14-116-308(d)(2)).