Federal records held by state not available under state law
ARKANSAS — Attorney General Winston Bryant issued an opinion in late September stating that if federal records held by state agencies are exempt from disclosure under the federal Freedom of Information Act, they are exempt under the Arkansas Freedom of Information Act as well.
The Arkansas FOI Act requires that all records in state agencies are open except where laws are “specifically enacted to provide otherwise” or where a specific exemption to the state law applies.
The attorney general wrote that the federal FOI Act is not a “confidentiality requirement” since its exemptions are “permissory, not mandatory.” However, he said the federal act’s exemptions were specifically enacted to provide for exemption from public disclosure.
The attorney general’s opinion came in response to a request for investigatory materials held by the state. The federal Environmental Protection Agency sent the Arkansas Department of Pollution Control and Ecology a draft notice of violation it was preparing against a company in Arkansas, telling the state agency to keep the draft document confidential and restrict access to agency personnel. An attorney for the company under investigation learned that the draft notice existed and in mid-August he filed a FOI Act request for it.
The director of the Arkansas agency forwarded the request to Bryant, asking the attorney general to determine if the Supremacy Clause of the U.S. Constitution would require that federal confidentiality requirements supersede any state law requiring disclosure. He also relayed the argument by EPA that the federal FOI Act’s internal memoranda exemption would protect the records from disclosure.
Bryant did not decide whether the Supremacy Clause would apply.
(Arkansas A-G Opinion No. 94-265)