C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure.

Common Law Exemptions. Only the legislature can exempt records from the FOIA, and the courts are not free to fashion their own exemptions via the common law. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). However, public access to judicial records is governed by the common law, and the courts have inherent authority to seal their records under narrow circumstances. See Arkansas Best Corp. v. General Electric Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Arkansas Dep’t of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).

Administrative Regulations. Agencies may not exempt records by regulation unless expressly given that power by statute. Ark. Op. Att’y Gen. No. 92-025. See, e.g., Ark. Code Ann. § 14-51-301(b)(2)(B) & (9)(A) (municipal civil service commissions shall adopt rules protecting examinations from disclosure and copying); § 15-4-1226(b)(4) (Securities Commissioner may “[c]lassify as confidential” certain records obtained in connection with an investigation of a county or regional industrial development company); § 20-76-433(a)(1)(A) (records identifying persons participating in programs administered by the Department of Human Services “may be disclosed only as expressly authorized by law or regulation creating or implementing such programs”); § 23-2-316(b)(1) (Public Service Commission may restrict access to records “in the interest of the public” or, as to proprietary facts or trade secrets, “in the interest of the utility”). See also Ark. Code Ann. § 12-27-113(e)(2)(A) (disclosure of information in Department of Correction inmate records is unlawful “except as authorized by administrative regulation”). Administrative regulations, like statutes exempting records from the FOIA, must specifically provide for nondisclosure and will be construed narrowly by the courts. Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000).

Constitutional Right to Privacy. Although the FOIA provides some protection for privacy interests in the context of personnel records, it lacks a general exemption for records which, if disclosed, would constitute an invasion of personal privacy. However, the Arkansas Supreme Court has recognized a federal constitutional right to privacy which in some cases may prevent access under the FOIA. This right applies to matters that a person wants to keep and has kept private, can be kept private but for the challenged governmental action in disclosing the information, and would be harmful or embarrassing to a reasonable person if disclosed. If this test is satisfied, the question is “whether the governmental interest in disclosure under the [FOIA] outweighs the [individual’s] privacy interest in the nondisclosure of the personal matters.” McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).  See Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718, opinion after remand, 371 Ark. 217, 264 S.W.3d 465 (2007) (recognizing a private individual’s standing to assert a privacy interest in the disclosure of e-mails, requiring trial court to conduct an in camera review of all e-mails a county employee exchanged with the private individual to determine if e-mails were public records under the FOIA, and affirming trial court’s ruling that the private individual had no expectation of privacy in the e-mails).  See also Ark. Op. Att’y Gen. Nos. 2008-071, 98-260, 96-363, 96-308, 96-161, 93-356, 92-025, 91-208, 90-324.