Attorney general can bring FOI Act enforcement suit

ARKANSAS–In a 5-2 late-December decision, the state Supreme Court in Little Rock ruled that the state’s attorney general may sue on the public’s behalf to enforce the state’s open records laws.

The attorney general has standing to challenge the denial of a records request made when he is acting in his official capacity and using the resources of his office, the court held.

Writing for the majority, Justice Ray Thornton noted that state Attorney General Winston Bryant could not be deprived of standing to bring a suit simply because of the office he holds. In so doing, the high court overturned an appellate court which construed the state’s open records laws to allow challenges only by private citizens.

The case arose in late 1997 when Gov. Mike Huckabee established a hotline to collect allegations of wrongdoing in connection with state contracts. Following the denial of media requests to inspect hotline- generated documents, Bryant filed a request under the state’s open records laws to view the materials. The request was denied and Bryant filed a complaint in state trial court.

The court dismissed the complaint, stating that the Attorney General was an “office” or an “entity,” and not a “citizen.” Only citizens can bring suits under the open records laws, the court held.

Interpretations of the state’s Freedom of Information Act limiting the ability to sue solely to private citizens were contrary to federal law and the intent of the Arkansas legislature, Thornton wrote, adding that the words “þcitizen,’ þpublic,’ þperson’ and þanyone'” were used in the act to describe those with standing to sue.

In a concurrence, Justice Tom Glaze noted that state case law compelled the conclusion that “anyone who requests information under the Act is entitled to it.”

Dissenting justice David Newbern said that the text of the act revealed no intention on the part of the General Assembly to include a governmental officer, acting in his official capacity, within the meaning of the word “citizen.” The majority, therefore, misconstrued the standing issue, he wrote, adding that changes to open records laws should be made by the legislature and not the courts. (Bryant v. Weiss)