Freedom of Information Act(FOIA)Office of General CounselArkansas Department of Health(501) 661-2878

Arkansas FOIA Codified at Arkansas Code Annotated25-19-101 et seq.Covers two broad areas: Public meetingsPublic records Amended to specifically include “Electronic orComputer-Based Information or datacompilations in any medium.”

Legislative Intent A.C.A. § 25-19-102 To insure that electors or theirrepresentatives are fullyadvised of the activities anddecisions of their public officialsCase law sets forth liberalinterpretation rule (Laman v.McCord, 245 Ark. 401 (1968))Exemptions to be narrowlyconstrued (Bryant v. Mars, 309Ark. 480 (1992); Orsini v. State,340 Ark. 665 (2000))

Scope of the FOIA Requires most meetings of “governingbodies” to be open to the public; Allows the public to inspect and receivecopies of public records of governmentalagencies unless the law makes anexception for them; Can apply to meetings and records ofprivate organizations if they receive publicfunding.

FOIA DOES NOTREQUIRE: - Citizen participation at meetings (justattendance)(But see A.C.A. § 14-14-109(b), requiringcounty boards to afford citizens “a reasonableopportunity to participate prior to the finaldecision.”)- Any Particular time period for record retention(But see A.C.A. §§ 25-18-601 to -605concerning records retention by “stateagencies.”)(and county records retention requirements atA.C.A. §§ 13-4-301 to -308.)

Public Meetings A.C.A. § 25-19-103(4) defines publicmeetings as “meetings of any bureau,commission, or agency of the state, orany political subdivision of the state,including municipalities and counties,boards of education, and all otherboards, bureaus, commissions, ororganizations in the State of Arkansas,except grand juries, supported whollyor in part by public funds or expendingpublic funds”A.C.A. § 25-19-106(a) establishes theopen meeting requirement: “All meetings, formal or informal,special or regular” of the“governing bodies” of cities,counties, school districts, stateentities, and some private entities,must be open to the publicAct is triggered even if no official actionis taken.

Open Public MeetingsA.C.A. § 25-19-106(a) Only applies to“Governing Bodies” withdecision-making powerSubcommittees ofgoverning bodies arecovered, as are anyother committees withdelegated power todecide Ark. Gazette Co.v. Pickens, 258 Ark. 69(1975) & Op. 2002-092)Does not apply to staffmeetings (Nat’l. ParkMed. Ctr. v. Ark. DHS,322 Ark. 595 (1995) Or to advisory bodiesunless de facto governingbody; Op. 2006-059 (butrecords are subject)Advisory committeescomposed partially of boardmembers might be covered(Op. 2000-260)A specific statute maygovern particular meetingsRecords may be open butmeetings closed, if not a“governing body”

How many members makea meeting? Quorum not required (El Dorado Mayor v. El DoradoBroadcasting, 260 Ark. 821 (1976).3 members to discuss government business, mustcomply.2 members can be a meeting depending on the facts;“polling” or pre-meeting conferencing before a vote iscovered Harris v. City of Fort Smith (197 S.W.3d 461(2004)).Telephone conferences are permissible if properprocedures are followed and notice is given (RehabHosp. Services Corp. v. Delta-Hills Health SystemsAgency, 284 Ark. 397 (1985).There is a right to know how officials vote – no secretballots Depoyster v.Cole, 298 Ark 203 (1984).

SocialGatherings/Conferences Considered a “meeting?” Not if any discussionof governmentbusiness at the socialgathering is incidentaland intermittent(Op.95-020) Maybe not if thegoverning body has nocontrol over theconference, function, orproceeding (Op. 94-131)

Can E-mail be a meeting?(Op. 2005-166) Electronically stored e-mail messages are publicrecords and “ordinarily” do not evidence a meeting –generally analogous instead to writtencorrespondence.But possibility exists for violating the FOIA with“sequential or circular series of communications.”(Harris v. City of Fort Smith, 197 S.W.3d 461 (2004))Other states distinguish mere informationalcorrespondence or “passive receipt of e-mail” fromcommunications designed to elicit substantivediscussion.Factual question in each instance as to whetherviolation occurred. Consider substance of the e-mailand presence or absence of interaction among thegoverning body members.

Open Public Meetings(Notice)A.C.A. § 25-19-106(b)(1) The time and place of eachregular meeting shall befurnished to anyone whorequests the information. No one entitled to noticeunless requested(Elmore v. Burke, 337Ark. 235 (1999) No particular form ofnotice required, but mustbe calculated to giveactual notice (Op. 96074) Must publish the date, time,and location of any meetingand hearing open to the publicat at least3 days before the meeting. Doesn’t apply toemergency or specialmeetings.

Open Public Meetings(Notice) A.C.A. § 25-19-106(b)(2) In the event of emergency or special meetings,the person calling the meeting shall notify therepresentatives of the newspapers, radio stations,and television stations, if any, located in the countyin which the meeting is to be held and any newsmedia located elsewhere which cover regularmeetings of the governing body and which haverequested to be so notified of emergency orspecial meetings, of the time, place, and date of themeeting. Notification shall be made at least two (2)hours before the meeting takes place in order thatthe public shall have representatives at the meeting.

Exceptions to Open Meetings(Private Meetings) Executive sessions forcertain personnel issues Only for the purpose ofconsideringemployment,appointment,promotion, demotion,disciplining orresignation of a publicofficer or employeeExecutive sessions ofState Boards to preparelicensure test questionsand administer the tests.(2001 law).

Action taken at an illegal meetingwill not be invalidated unless:1)2)3)4)Plaintiff has given the body a chance tohold a meeting that conforms;Remedy is sought to vindicate public asopposed to private interest;The FOIA violation was substantial; andThe defendant knowingly violated the Act(Rehab Hospital Services Corp. v. DeltaHills Health Systems Agency, 284 Ark.397 (1985).

Public Records Definition of PublicRecords A.C.A. 25-19-103(5)(A) “writings, recordedsounds, films, tapes,electronic or computerbased information or datacompilations in anymedium required by law tobe kept or otherwise kept”and which “constitute arecord of the performanceor lack of performance ofofficial functions .”Excludes softwareacquired by purchase,lease or license.

Public Records (con’t) All records maintained in public offices or bypublic employees within the scope of theiremployment are presumed to be public records.A.C.A. 25-19-103(5)(A).The presumption can be rebutted if the recorddoes not reflect the “performance or lack ofperformance of official functions.” Op. 2005-095.Whether a particular record is a “public record”depends upon its content. Pulaski County v.Arkansas Democrat-Gazette (Ark. Sup. Ct. 07669, July 20, 2007).If challenged, a court must make an “in camera”or private “in chambers” review to determinewhether the records are “public records.” Id.

Access to Public RecordsA.C.A. 25-19-105 Unless exempt “ . . All public recordsshall be open toinspection andcopying by anycitizen duringregular businesshours .”

Scope The FOIA covers “records” not “information”An agency need not create new records to complyIf records are part public and part exempt, redactexempt material and provide the restE-mails or letters sent to private e-mail addresses orprivate residences of public officials are subject to FOIAif they involve the public’s business. Bradford v.Director, ESD, 83 Ark. App. 332, 128 S.W.3d 20 (2003);Opinion 2000-220. Otherwise the FOIA could becircumvented.A public entity can be the custodian of public recordseven if it does not have physical possession of them, aslong as it has “administrative control” of the records.A.C.A. 25-19-103(1)(A). Fox v. Perroni, 358 Ark. 251(2004).

FOIA Requests – Mode &Specificity Requests may be made in person, bytelephone, mail, facsimile, electronicmail, or any other electronic meansprovided by the custodian.The request shall be sufficientlyspecific to enable the custodian tolocate the records with reasonableeffort.

FOIACitizens may request copies in “anymedium in which the record is readilyavailable or in any format to which it isreadily convertible” with existingsoftware. Custodian is still notrequired to compileinformation or createa record in responseto a request.

FOIA Compliance Requires immediate access unless recordsare in “active use or storage.”If in active use or storage, custodian mustcertify that fact in writing and set time within3 working days to provide the records.Determine to what extent records are publicor non-public; redact exempt portions; andprovide the public records.An agency that is not the custodian ofrequested records should identify theproper custodian, if known or readilyascertainable.

COPIES A citizen may . . . “inspect, copy orreceive copies of public records.”

COPIES (Con’t) “Upon request and payment of a fee, . . the custodian shall furnish copies ofpublic records if the custodian has thenecessary duplicating equipment.”

Exemptions to Access inthe FOIA State Income Tax Records Individual and Corporate Income Tax Returns Any State Income Tax Record Employee Payroll WithholdingMedical Records Records containing information relating to the treatmentor diagnosis of a medical conditionAdoption RecordsEducation Records, as defined in federal law, “Family andEducational Right to Privacy Act,” 20 USC § 1232g.Certain Historical Preservation & Archeological SurveyRecordsGrand Jury minutesUnpublished drafts of judicial & quasi-judicial opinionsUnpublished memoranda, working papers &correspondence of certain state officials – Governor,Attorney General, General Assembly members andappellate judges.Documents protected from disclosure by order or rule ofcourt. See also Arkansas Supreme Court, AdministrativeOrder #19.

Exemptions to Access(Continued) Files that would give advantage to competitors or biddersCertain AEDC RecordsIdentities of current undercover officers (identified as undercover at State Minimum StandardsOffice)Records containing measures, procedures, instructions, orrelated data used to cause a computer to perform securityfunctions, including but not limited to, passwords, personalidentification numbers . . . and other means of preventingaccess to computers . . . or any data residing thereinNon-elected state, county and municipal employees’ homeaddresses are exempt.Notwithstanding the exemption, the custodian shall “verify”: An employee’s city or county of residence Or “address of record” upon request.Home addresses of non-elected school district and otheremployees subject to the FOIA may be exempt under the 2519-105(b)(12) exemption for personnel records. See Stilley v.McBride, 332 Ark. 306 (1998).

Exemptions to Access(con’t) Examinations for Licensure State agency materials, information,examinations, and answers utilized byboards and commissions for testingapplicants for licensure Military Discharge Records (DD Form 214) A.C.A. 25-19-105 exempts “Military Servicedischarge records or DD Form 214 for veteransdischarged from service less than seventy (70)years from the current date and filed with thecounty recorder as provided under 14-2-102.”Reports, analyses, investigations, and any otherrecords containing information that, if disclosed,might jeopardize or compromise efforts to secureand protect the public water system. A.C.A. 2519-105(18)(A) & (B).

More exemptions . . . Vulnerability Assessments submitted by apublic water system on or before June 30,2004 to the EPA for 10 years aftersubmission. 25-19-105(b)(16).Records relating to DHS risk or securityassessments or regarding compliance with“HIPAA,” the Federal Health InsurancePortability and Accountability Act. (Act 726of 2007.)

Homeland SecurityInformation Act The “Homeland SecurityInformation Act” shieldscertain terrorism threatassessments, plans,operational policies orprocedures, and trainingdeveloped or maintained by“emergency serviceagencies.”Also shields certaininvestigative records untilafter “final adjudication.”And records received fromfederal government andother states and cities ifshielded in thosejurisdictions.

Exemptions Not Contained in theFOIA Exemptions in otherState Statutes.Exemptions infederal law.Constitutional right toprivacy (McCambridge v. Cityof Little Rock, 298Ark. 219, 766 S.W.2d909 (1989)).

Penalties andEnforcement A.C.A. 25-19-104 (Criminal Penalty) Negligent violation is a Class “C” misdemeanor. See Act 1994of 2005, Sec. 413.Former specific language authorizing public service oreducation or both repealed. Act 1994 of 2005, Sec. 413.

Penalties andEnforcement A.C.A. 25-19-107 (Civil Judicial Enforcement) Any citizen denied their FOIA rights may appeal tocircuit court

Attorneys’ Fees May beAwarded Against a defendant where the plaintiffsubstantially prevails unless the position ofthe defendant was substantially justified, orother circumstances would make an awardunjust.Against a plaintiff where the defendantsubstantially prevails only if the action wasinitiated primarily for frivolous or dilatorypurposes.No attorneys’ fees may be awarded againstthe State or any of its departments oragencies (sovereign immunity concerns).

QUESTIONS?Call us Anytime!Rick D. Hogan 661-2252Reggie Rogers 661-2609Elizabeth Pitman 280-4034