Arkansas

Cases and Opinions
Fees
Profit-making
E-mail
GIS
Online
Resources

The Arkansas Freedom of Information Act was updated in 2001 to address access to electronic information. The law now includes data in the definition of a public record. Agencies must now redact confidential information rather than just deny a database. The new law requires that government computer systems now be designed to make public access easier. The law did exempt agency software from public disclosure and said that agencies are not required to "create" a new record. Journalists in Arkansas report that they still experience problems with delays and high fees when agencies say they have to "compile" data.

The law. The Arkansas Freedom of Information Act defines public records to include "tapes, or data compilations in any medium," meaning "the physical form or material on which records may be stored or represented." Ark. Code Ann. § 25-19-103(5)(A). "Public information"includes any information stored, gathered or generated in electronic or magnetic form by the state or its agencies and instrumentalities that is deemed to be public under the Arkansas Freedom of Information Act. Ark. Code Ann. § 25-27-102(5). The legislature also created the Information Network of Arkansas, which will provide electronic access to "public information" through the Internet, maintain state Internet sites and supply database hosting services. § 25-27-102.

Computer "software acquired by purchase, lease or license" was excluded from the definition of public records, "to protect proprietary data and ensure that government agencies and other entities subject to the FOI Act can easily obtain software necessary to carry out their functions."

"Custodian" of records is now defined as "the person having administrative control of that record." FOI Act requests now" may be made in person, by telephone, by mail, by facsimile, electronic mail or by other electronic means provided by the custodian," such as the Internet. This change under the new law has posed problems for some reporters who have encountered agency clerks who claim they cannot release records because they are not the "official"custodian of the records.

Information does not have to be compiled or a new record created by a custodian of records. However, they can "summarize, compile or tailor electronic data" in response to FOI Act requests and to "provide data in an electronic format to which it is not readily convertible." If that takes more than two hours, a verifiable fee can be assessed for employee time.

Citizens have the right to "inspect, copy or receive copies of public records." Prior to the 2001 amendments, it was not clear whether the law required copies of records to be made and provided.

Records requests can’t be denied because some of the information contained within records is considered unreleasable. That information must be redacted.

State agencies, boards and commissions (not including city and county governments, and school districts) must provide organizational descriptions, office locations, methods to access information, e-mail and Internet addresses, a list and general description of its records including databases, regulations, rules and formally proposed changes.

No more than "actual costs of reproduction, including the cost of the medium of production, supplies, equipment, and maintenance, but not including agency personnel time associated with searching for, retrieving, reviewing, or copying the records"may be charged. The cost of mailing or transmitting records may be charged, and a breakdown of all fees must be provided.

Security information related to computer systems, such as passwords, is now specifically exempt from FOI Act.

Any computer hardware or software acquired by an entity subject to § 25-19-103(5)(A) after July 1, 2001, shall be in full compliance with the requirements of this section and shall not impede public access to records in electronic form readily convertible with the custodian’s existing software.

A citizen "may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software." § 25-19-105(d)(2)(B).

The custodian "may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible." § 25-19-109(a)(1). Custodians are encouraged to do so when "the cost and time involved in complying with the requests are relatively minimal." § 25-19-109(a)(2).

Each state agency, board and commission shall prepare and make available a list and general description of its records, including computer databases.

Cases & opinions.Information maintained in computer storage is a public record subject to disclosure. However, the state supreme court refused to order a county to turn over a "data module"so a requester could make his own copy when a county contractor was unable to make such a copy on its own equipment. The court ruled that a paper printout provides adequate access to the public record in such a case. Blaylock v. Staley, 732 S.W.2d 152 (Ark. 1987). The law does not obligate agencies to compile or collect information in a particular format sought by a requester. Ark. Op. Att’y Gen. 87-211 (June 23, 1987). Because it is a "data compilation,"e-mail is subject to state disclosure provisions. Ark. Op. Att’y Gen. 96-258 (Aug. 1996).

The form of the record may affect the application of an exemption. For example, in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), the supreme court recognized that an individual’s privacy interest in a tape recording is greater than his or her privacy interest in a transcript of that recording.

The FOI Act places the burden on the state agency to make arrangements for reasonable access to public records, notwithstanding the agency ‘s contention that the records are not in its actual or constructive possession or control. Swaney v. Tilford, 320 Ark 652, 898 S.W.2d 462 (1995); University of Arkansas, 255 Ark.108, 499 S.W.2d 56 (1973).

In determining whether personnel records are exempt from disclosure under Ark. Code. Ann. § 25-19-105(b)(10), the court will weigh the public interest in the requested records against the affected individuals’ privacy interest in withholding them. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Revealing "intimate details"of a person’s life gives rise to a substantial privacy interest. Id. In considering the "public interest"prong of the balancing test, the court will examine the degree to which release of the information would serve the purpose of the FOI Act, i.e., to keep the citizens advised of the performance of their public officials. Stilley v. McBride, 332 Ark.306, 965 S.W.2d 125 (1998)

Personal identifiers such as unlisted addresses and telephone numbers, personal histories, religious affiliation, citizenship, information about family life, welfare payments, legitimacy of children, alcohol use, marital status, payroll deductions, Social Security numbers, credit union statements and other financial records, insurance coverage and medical records are protected by the "unwarranted invasion of privacy" exemption. Att’y Gen. Op. No. 93-076 (March 25, 1993)

A private entity is subject to the FOI Act when it receives public funds and carries on public business or is otherwise intertwined with the activities of a public entity. See Waterworks v. Kristen Invest. Prop., 72 Ark.App. 37, 32 S.W.3d 60 (2000); North Central Association of Colleges & Schools v. Troutt Bros., Inc., 261 Ark. 378, 548 S.W.2d 825 (1977) and Rehab Hosp. Services Corp. v. Delta Hills Health Systems Agency, 285 Ark. 397, 687 S.W.2d 840 (1985). The inquiry should focus on whether there is a symbiotic relationship between the private entity and the state or local government, such as when the private entity receives public funds for the general support of activities that are closely aligned with those of government. J. Watkins, The Arkansas Freedom of Information Act (3rd ed.1998). When the activities of a private organization and the government become intertwined, the private organization may well render itself part of the government for FOI Act purposes. See Att’y Gen. Op. Nos. 89-082 (nonprofit organization assisting local law enforcement in emergency situations); 95-273 (private nonprofit agency on aging providing services under a federal grant program); 2000-039 (private, nonprofit corporation licensed by the state as a community service provider).

FOI Act applies to a private entity that is paid from public funds for services rendered to a government agency in some instances. The question seems to be whether the private entity is the "functional equivalent" of government employees. City of Fayetteville v. Edmark, 304 Ark.179, 801 S.W.2d 275 (1990); Att’y Gen.Op. Nos.2001-172, 96-185. The FOI Act applies to records [and meetings ] relevant to the task performed on behalf of the public agency in that instance. Att’y Gen. Op. No.95-121 (June 27, 1995)

A governmental agency is not required to compile or create a record to satisfy an FOI Act request if no such record currently exists. Att’y Gen. Op. Nos. 87-211 and 91-208. However, new Section 25-19-109 permits and encourages custodians to compile and reformat electronic data. The custodian may charge for personnel time exceeding two hours.

Personnel information that is covered by FOI Act includes salary, work history, educational background, training and certification, as well as terms of a settlement releasing an employee from his or her contract. Att’y Gen. Op. Nos.93-114; 88-078 (May 28, 1993; March 23, 1988)

Fees. The FOI Act’s limitations on fees apply regardless of medium. Unless a specific statutory provision authorizes a higher fee, "any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records."Ark. Code Ann. § 25-19-105(d)(3)(A)(i). The custodian of the records must provide "an itemized breakdown of charges." § 25-19-105(d)(3)(B).

A custodian who agrees to "summarize, compile, or tailor electronic data in a particular manner or medium"or to "provide the data in an electronic format to which it is not readily convertible"may charge "the actual, verifiable costs of personnel time exceeding two hours associated with the tasks,"plus any copying charges authorized by the FOI Act. Ark. Code Ann. § 25-19-109(a)(1) & (b)(1). The charge for personnel time may not exceed "the salary of the lowest paid employee or contractor who, in the discretion of the custodian, has the necessary skill and training to respond to the request."§ 25-19-109(b)(2). An itemized breakdown of all charges is required. § 25-19-109(c).

The state supreme court is authorized to establish a "reasonable fee"for access to its electronic records, Ark. Code Ann. § 21-6-401(d), but makes them available online at no charge. The board of directors of the Information Network of Arkansas, created by the General Assembly in 1995, is authorized to "develop and implement an electronic gateway system to provide electronic access . . . to public information"and to "establish charges for [its] services."§ 25-27-104(a)(1) & (3). The INA board has selected a private firm to provide Internet access to public records. There is no charge for access to these records, although the firm is allowed to charge for records that are by statute available only for a fee and for special "value-added" services.

Profit-making. The practice of selling public databases for revenue-raising purposes has not been widespread in Arkansas. Only extracts from corporate and Uniform Commercial Code records in the Secretary of State’s Office have been sold in recent years, and the revenue was insubstantial. By contrast, providing electronic access to certain information that is not open to the public — traffic violation records of individual drivers — generates approximately $8 million annually, most of which is used to fund operations of the state police. By statute, these records are available only to courts, government agencies, insurance companies that cover the driver or have received an application for insurance, and, if the driver consents in writing, to employers and other persons. Ark. Code Ann. § 27-50-906. Authorized persons may obtain this information on-line via the Information Network of Arkansas (INA) for an additional fee. This revenue supports INA’s public access activities. See Item H, infra.

GIS. In 1995, the General Assembly created the State Land Information Board and charged it with implementing a modernized land-records system. Ark. Code Ann. §§ 15-21-501 et seq. The board was directed to establish a "shareable, statewide digital land basemap"and to "analyze and propose legislation to address issues enabling cost recovery in respect to freedom of information policy."The board considered but rejected the imposition of fees for GIS data. In 2001, the legislature deleted the provision regarding cost recovery. See Act 1250 of 2001. This task will presumably be undertaken by the newly created Chief Information Officer. See Act 1042 of 2001. As of this writing, some state GIS information is available online with no subscription fee. See www.cast.uark.edu/cast/geostor/. Some local governments also have GIS data available online at no charge. See, e.g., www.faygis.org/ (City of Fayetteville).

Online. Act 1653 of 2001 added a new section to the FOI Act requiring all state agencies, boards, and commissions (but not local governments) to make available via the Internet, at no charge, certain records created after July 1, 2003. Ark. Code Ann. § 25-19-108(b)(1). These records include: a description of its organization, including its central and field offices and the nature of its operations; the methods by which the public may access public records and the locations at which those records are available, including street, mailing, e-mail and Internet addresses; a list and general description of its records, including computer databases; its regulations, rules of procedure, any formally proposed changes in those regulations and rules, and all other written statements of policy or interpretations formulated, adopted, or used in the discharge of its functions; documents comprising an administrative adjudication decision in a contested matter, except those parts that are confidential under state or federal law; and copies of records released under Section 25-19-105 which the agency, board or commission believes likely to be the subject of frequent FOI Act requests. § 25-19-108(a)(1)-(5).

If a record requested by a citizen pursuant to Section 25-19-105 of the FOI Act is posted on the Internet, the custodian may respond to that request by stating that "they are available on the Internet at a specified location."This response is sufficient "unless the requester specifies another medium or format."§ 25-19-108(b)(2).At the local level, school districts are required by statute to publish certain information on their Web sites, including minutes of meetings, the district’s budget, a breakdown of monthly expenses, employee salaries, and the district’s annual audit. § 6-13-620(14). If a district does not have a Web site, then on or before July 1, 2003, the district’s educational cooperative will develop one or enter into an agreement with a city or county to post the district’s information on the Web site of that entity. § 6-13-620(15).

E-mail. Because a public record is defined to include "electronic or computer-based information," Ark. Code Ann. § 25-19-103(5)(A), the FOI Act reaches electronic mail. This was also the case prior to the 2001 amendment revising the definition to include this information, because the act reached "data compilations in any form." See Ark. Att’y Gen. Op. No. 99-018 (electronically stored e-mail is public record).

Resources. FOI Arkansas