MAIN STREET HARDY

The Arkansas Freedom of Information Act(FOIA)

This chapter shall be known and cited as the “Freedom of Information Actof 1967″.

History. Acts 1967, No. 93, § 1.A.S.A. 1947, § 12-2801. 

25-19-102. Legislative intent.

It is vital in a democratic society that public business be performed in anopen and public manner so that the electors shall be advised of theperformance of public officials and of the decisions that are reached inpublic activity and in making public policy. Toward this end, this chapter isadopted, making it possible for them or their representatives to learn and toreport fully the activities of their public officials.

History. Acts 1967, No. 93, § 2.

A.S.A. 1947, § 12-2802.

25-19-103. Definitions.

(1)(A) “Custodian”, with respect to any public record, means the personhaving administrative control of that record.

(B) “Custodian” does not mean a person who holds public records solelyfor the purposes of storage, safekeeping, or data processing for others;

(2)”Format” means the organization, arrangement, and form of electronicinformation for use, viewing, or storage;

(3)”Medium” means the physical form or material on which records andinformation may be stored or represented and may include, but is notlimited to, paper, microfilm, microform, computer disks and diskettes,optical disks, and magnetic tapes;

(4) “Public meetings” means the meetings of any bureau, commission, oragency of the state or any political subdivision of the state, includingmunicipalities and counties, boards of education, and all other boards,bureaus, commissions, or organizations in the State of Arkansas, exceptgrand juries, supported wholly or in part by public funds or expendingpublic funds;

(5)(A) “Public records” means writings, recorded sounds, films, tapes,electronic or computer-based information, or data compilations in anymedium required by law to be kept or otherwise kept and that constitute arecord of the performance or lack of performance of official functions thatare or should be carried out by a public official or employee, agovernmental agency, or any other agency wholly or partially supported bypublic funds or expending public funds. All records maintained in publicoffices or by public employees within the scope of their employment shallbe presumed to be public records.

(B) “Public records” does not mean software acquired by purchase, lease,or license; and

(6)(A) “Public water system” means all facilities composing a system forthe collection, treatment, and delivery of water to the general public,including, but not limited to, reservoirs, pipelines, reclamation facilities,processing facilities, and distribution facilities.

(B) This subdivision (6) shall expire on July 1, 2007.

History. Acts 1967, No. 93, § 3; 1977, No. 652, § 1; 1981, No. 608, § 1;1985, No. 468, § 1; Acts 2001, No. 1653, § 1; 2003, No. 763, § 1; 2005,No. 259, § 1.

A.S.A. 1947, § 12-2803.

As used in this chapter:25-19-104. Penalty.

Any person who negligently violates any of the provisions of this chaptershall be guilty of a Class C misdemeanor.

History. Acts 1967, No. 93, § 7; Acts 1987, No. 49, § 3; 2005, No. 1994, §413.

A.S.A. 1947, § 12-2807.25-19-105. Examination and copying of public records.

(a)(1)(A)

(B)(i) However, access to inspect and copy public records of theDepartment of Correction and the Department of Community Correctionshall be denied to:

(a)A person who at the time of the request has pleaded guilty to or beenfound guilty of a felony and is incarcerated in a correctional facility; and

(b)The representative of a person under subdivision (a)(1)(B)(i)(a) of thissection unless the representative is the person’s attorney who is requestinginformation that is subject to disclosure under this section.

(ii) Access to inspect and copy public records of the Department ofCorrection and the Department of Community Correction shall be denied toa person under subdivision(a)(1)(B)(i)(a) of this section regardless ofwhether the records are in the possession of the Department of Correction,the Department of Community Correction, or another agency of the state.

(2)(A) A citizen may make a request to the custodian to inspect, copy, orreceive copies of public records.

(B)The request may be made in person, by telephone, by mail, byfacsimile transmission, by electronic mail, or by other electronic meansprovided by the custodian.

(C)The request shall be sufficiently specific to enable the custodian tolocate the records with reasonable effort.

(3) If the person to whom the request is directed is not the custodian of therecords, the person shall so notify the requester and identify the custodian,if known to or readily ascertainable by the person.

(b) It is the specific intent of this section that the following shall not bedeemed to be made open to the public under the provisions of this chapter:

(1) State income tax records;

(2)Medical records, adoption records, and education records as defined inthe Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g,unless their disclosure is consistent with the provisions of that act;

(3)The site files and records maintained by the Arkansas HistoricPreservation Program of the Department of Arkansas Heritage and theArkansas Archeological Survey;

(4)Grand jury minutes;

(5)Unpublished drafts of judicial or quasi-judicial opinions and decisions;

(6)Undisclosed investigations by law enforcement agencies of suspectedcriminal activity;

(7)Unpublished memoranda, working papers, and correspondence of theGovernor, members of the General Assembly, Supreme Court Justices,Court of Appeals Judges, and the Attorney General;

(8)Documents that are protected from disclosure by order or rule of court;

(9)(A) Files that if disclosed would give advantage to competitors orbidders and records maintained by the Arkansas Economic DevelopmentCommission related to any business entity’s planning, site location,expansion, operations, or product development and marketing, unlessapproval for release of those records is granted by the business entity.

(B) However, this exemption shall not be applicable to any records ofexpenditures or grants made or administered by the commission andotherwise disclosable under the provisions of this chapter;

(10)(A) The identities of law enforcement officers currently workingundercover with their agencies and identified in the Arkansas MinimumStandards Office as undercover officers.

(B) Records of the number of undercover officers and agency lists are notexempt from this chapter;

(11) Records containing measures, procedures, instructions, or related dataused to cause a computer or a computer system or network, includingtelecommunication networks or applications thereon, to perform securityfunctions, including, but not limited to, passwords, personal identificationnumbers, transaction authorization mechanisms, and other means of

preventing access to computers, computer systems or networks, or any dataresiding therein;

(12)Personnel records to the extent that disclosure would constitute aclearly unwarranted invasion of personal privacy;

(13)Home addresses of nonelected state employees, nonelected municipalemployees, and nonelected county employees contained in employerrecords, except that the custodian of the records shall verify an employee’scity or county of residence or address on record upon request;

(14)Materials, information, examinations, and answers to examinationsutilized by boards and commissions for purposes of testing applicants forlicensure by state boards or commissions;

(15)Military service discharge records or DD Form 214, the Certificate ofRelease or Discharge from Active Duty of the United States Department ofDefense, filed with the county recorder as provided under § 14-2-102, forveterans discharged from service less than seventy (70) years from thecurrent date; and

(16)(A) Records, including analyses, investigations, studies, reports,recommendations, requests for proposals, drawings, diagrams, blueprints,and plans, containing information relating to security for any public watersystem.

(B) The records shall include:

(i)Risk and vulnerability assessments;

(ii)Plans and proposals for preventing and mitigating security risks;

(iii)Emergency response and recovery records;

(iv)Security plans and procedures; and

(v)Any other records containing information that if disclosed mightjeopardize or compromise efforts to secure and protect the public watersystem.

(C) This subdivision (b)(16) shall expire on July 1, 2007.

(c)(1) Notwithstanding subdivision (b)(12) of this section, all employeeevaluation or job performance records, including preliminary notes andother materials, shall be open to public inspection only upon finaladministrative resolution of any suspension or termination proceeding atwhich the records form a basis for the decision to suspend or terminate theemployee and if there is a compelling public interest in their disclosure.

(2) Any personnel or evaluation records exempt from disclosure under thischapter shall nonetheless be made available to the person about whom therecords are maintained or to that person’s designated representative.

(3)(A) Upon receiving a request for the examination or copying ofpersonnel or evaluation records, the custodian of the records shalldetermine within twenty-four (24) hours of the receipt of the requestwhether the records are exempt from disclosure and make efforts to thefullest extent possible to notify the person making the request and thesubject of the records of that decision.

(B)(i) If the subject of the records cannot be contacted in person or bytelephone within the twenty-four-hour period, the custodian shall sendwritten notice via overnight mail to the subject of the records at his or herlast known address. Either the custodian, requester, or the subject of therecords may immediately seek an opinion from the Attorney General, who,within three (3) working days of receipt of the request, shall issue anopinion stating whether the decision is consistent with this chapter.

(ii) In the event of a review by the Attorney General, the custodian shallnot disclose the records until the Attorney General has issued his or heropinion.

(C) However, nothing in this subsection shall be construed to prevent therequester or the subject of the records from seeking judicial review of thecustodian’s decision or the decision of the Attorney General.

(d)(1) Reasonable access to public records and reasonable comforts andfacilities for the full exercise of the right to inspect and copy those recordsshall not be denied to any citizen.

(2)(A) Upon request and payment of a fee as provided in subdivision(d)(3) of this section, the custodian shall furnish copies of public records ifthe custodian has the necessary duplicating equipment.

(B)A citizen may request a copy of a public record in any medium inwhich the record is readily available or in any format to which it is readilyconvertible with the custodian’s existing software.

(C)A custodian is not required to compile information or create a recordin response to a request made under this section.

(3)(A)(i) Except as provided in § 25-19-109 or by law, any fee for copiesshall not exceed the actual costs of reproduction, including the costs of themedium of reproduction, supplies, equipment, and maintenance, but notincluding existing agency personnel time associated with searching for,retrieving, reviewing, or copying the records.

(ii)The custodian may also charge the actual costs of mailing ortransmitting the record by facsimile or other electronic means.

(iii)If the estimated fee exceeds twenty-five dollars ($25.00), thecustodian may require the requester to pay that fee in advance.

(iv)Copies may be furnished without charge or at a reduced charge if thecustodian determines that the records have been requested primarily fornoncommercial purposes and that waiver or reduction of the fee is in thepublic interest.

(B) The custodian shall provide an itemized breakdown of charges undersubdivision (d)(3)(A) of this section.

(e) If a public record is in active use or storage and therefore not availableat the time a citizen asks to examine it, the custodian shall certify this factin writing to the applicant and set a date and hour within three (3) workingdays at which time the record will be available for the exercise of the rightgiven by this chapter.

(0(1) No request to inspect, copy, or obtain copies of public records shallbe denied on the ground that information exempt from disclosure iscommingled with nonexempt information.

(2)Any reasonably segregable portion of a record shall be provided afterdeletion of the exempt information.

(3)The amount of information deleted shall be indicated on the releasedportion of the record and, if technically feasible, at the place in the recordwhere the deletion was made.

(4) If it is necessary to separate exempt from nonexempt information inorder to permit a citizen to inspect, copy, or obtain copies of public records,the custodian shall bear the cost of the separation.

(g)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 therequirements of this section and shall not impede public access to records inelectronic form.

(h)Notwithstanding any Arkansas law to the contrary, at the conclusion ofany investigation conducted by a state agency in pursuit of civil penaltiesagainst the subject of the investigation, any settlement agreement enteredinto by a state agency shall be deemed a public document for the purposesof this chapter. However, the provisions of this subsection shall not applyto any investigation or settlement agreement involving any state taxcovered by the Arkansas Tax Procedure Act, § 26-18-101 et seq.

History. Acts 1967, No. 93, § 4; 1977, No. 652, § 2; Acts 1987, No. 49, § 1;1989 (3rd Ex. Sess.), No. 8, § 1; 1993, No. 895, § 1; 1997, No. 540, § 52;1997, No. 873, § 1; 1997, No. 1335, § 1; 1999, No. 1093, § 1; 2001, No.1259, § 1; 2001, No. 1336, § 1; 2001, No. 1653, § 2; 2003, No. 213, § 1;2003, No. 275, § 2; 2003, No. 763, § 2; 2003, No. 1214, § 1; 2005, No.259, § 2; 2005, No. 2003, § 1.

A.S.A. 1947, § 12-2804.

Except as otherwise specifically provided by this section or bylaws specifically enacted to provide otherwise, all public records shall beopen to inspection and copying by any citizen of the State of Arkansasduring the regular business hours of the custodian of the records.25-19-106. Open public meetings.

(a) Except as otherwise specifically provided by law, all meetings, formalor informal, special or regular, of the governing bodies of all municipalities,counties, townships, and school districts and all boards, bureaus,commissions, or organizations of the State of Arkansas, except grand juries,supported wholly or in part by public funds or expending public funds,shall be public meetings.

(b)(1) The time and place of each regular meeting shall be furnished toanyone who requests the information.

(2) In the event of emergency or special meetings, the person calling themeeting shall notify the representatives of the newspapers, radio stations,and television stations, if any, located in the county in which the meeting isto be held and any news media located elsewhere that cover regular

meetings of the governing body and that have requested to be so notified ofemergency or special meetings of the time, place, and date of the meeting.Notification shall be made at least two (2) hours before the meeting takesplace in order that the public shall have representatives at the meeting.

(c)(1) Executive sessions will be permitted only for the purpose ofconsidering employment, appointment, promotion, demotion, disciplining,or resignation of any public officer or employee. The specific purpose ofthe executive session shall be announced in public before going intoexecutive session.

(2)(A) Only the person holding the top administrative position in thepublic agency, department, or office involved, the immediate supervisor ofthe employee involved, and the employee may be present at the executivesession when so requested by the governing body, board, commission, orother public body holding the executive session.

(B) Any person being interviewed for the top administrative position inthe public agency, department, or office involved may be present at theexecutive session when so requested by the governing board, commission,or other public body holding the executive session.

(3)Executive sessions must never be called for the purpose of defeatingthe reason or the spirit of this chapter.

(4)No resolution, ordinance, rule, contract, regulation, or motionconsidered or arrived at in executive session will be legal unless, followingthe executive session, the public body reconvenes in public session andpresents and votes on the resolution, ordinance, rule, contract, regulation, ormotion.

(5)(A) Boards and commissions of this state may meet in executivesession for purposes of preparing examination materials and answers toexamination materials that are administered to applicants for licensure fromstate agencies.

(B) Boards and commissions are excluded from this chapter for theadministering of examinations to applicants for licensure.

(6)(A) Subject to the provisions of subdivision (c)(4) of this section, anypublic agency may meet in executive session for the purpose ofconsidering, evaluating, or discussing matters pertaining to public watersystem security as described in § 25-19-105(b)(16).

(B) This subdivision (c)(6) shall expire on July 1, 2007.

History. Acts 1967, No. 93, § 5; 1975 (Extended Sess., 1976), No. 1201, §1; 1985, No. 843, § 1; reen. Acts 1987, No. 1001, § 1; 1999, No. 1589, § 1;2001, No. 1259, § 2; 2003, No. 763, § 3; 2005, No. 259, § 3.

A.S.A. 1947, § 12-2805.

25-19-107. Appeal from denial of rights – Attorney’s fees.

(a)Any citizen denied the rights granted to him or her by this chapter mayappeal immediately from the denial to the Pulaski County Circuit Court orto the circuit court of the residence of the aggrieved party, if an agency ofthe state is involved, or to any of the circuit courts of the appropriatejudicial districts when an agency of a county, municipality, township, orschool district, or a private organization supported by or expending publicfunds, is involved.

(b)Upon written application of the person denied the rights provided forin this chapter, or any interested party, it shall be mandatory upon thecircuit court having jurisdiction to fix and assess a day the petition is to beheard within seven (7) days of the date of the application of the petitioner,and to hear and determine the case.

(c)Those who refuse to comply with the orders of the court shall be foundguilty of contempt of court.

(d)In any action to enforce the rights granted by this chapter, or in anyappeal therefrom, the court shall assess against the defendant reasonableattorney’s fees and other litigation expenses reasonably incurred by aplaintiff who has substantially prevailed unless the court finds that theposition of the defendant was substantially justified or that othercircumstances make an award of these expenses unjust. However, noexpenses shall be assessed against the State of Arkansas or any of itsagencies or departments. If the defendant has substantially prevailed in theaction, the court may assess expenses against the plaintiff only upon afinding that the action was initiated primarily for frivolous or dilatorypurposes.

History. Acts 1967, No. 93, § 6; Acts 1987, No. 49, § 2.A.S.A. 1947, § 12-2806.25-19-108. Information for public guidance.

(a) Each state agency, board, and commission shall prepare and makeavailable:

(1)A description of its organization, including central and field offices,the general course and method of its operations, and the establishedlocations, including, but not limited to, telephone numbers and street,mailing, electronic mail, and Internet addresses and the methods by whichthe public may obtain access to public records;

(2)A list and general description of its records, including computerdatabases;

(3)(A) Its regulations, rules of procedure, any formally proposed changes,and all other written statements of policy or interpretations formulated,adopted, or used by the agency, board, or commission in the discharge of itsfunctions.

(B)(i) Rules, regulations, and opinions used in this section shall refer onlyto substantive and material items that directly affect procedure anddecision-making.

(ii)Personnel policies, procedures, and internal policies shall not besubject to the provisions of this section.

(iii)Surveys, polls, and fact-gathering for decision-making shall not besubject to the provisions of this section.

(iv)Statistical data furnished to a state agency shall be posted only afterthe agency has concluded its final compilation and result.

(4)All documents composing an administrative adjudication decision in acontested matter, except the parts of the decision that are expresslyconfidential under state or federal law; and

(5)Copies of all records, regardless of medium or format, released under §25-19-105 which, because of the nature of their subject matter, the agency,board, or commission determines have become or are likely to become thesubject of frequent requests for substantially the same records.

(b)(1) All materials made available by a state agency, board, orcommission pursuant to subsection (a) of this section and created after July1, 2003, shall be made publicly accessible, without charge, in electronicform via the Internet.

(2) It shall be a sufficient response to a request to inspect or copy thematerials that they are available on the Internet at a specified location,unless the requester specifies another medium or format under § 25-19-105 (d)(2)(B).

History. Acts 2001, No. 1653, § 3.

25-19-109. Special requests for electronic information.

(a)(1)

(2) Where the cost and time involved in complying with the requests arerelatively minimal, custodians should agree to provide the data asrequested.

(b)(1) If the custodian agrees to a request, the custodian may charge theactual, verifiable costs of personnel time exceeding two (2) hoursassociated with the tasks, in addition to copying costs authorized by § 25-19-105(d)(3).

(2) The charge for personnel time shall not exceed the salary of the lowestpaid employee or contractor who, in the discretion of the custodian, has thenecessary skill and training to respond to the request.

(c) The custodian shall provide an itemized breakdown of charges undersubsection (b) of this section.

History. Acts 2001, No. 1653, § 4.

At his or her discretion, a custodian may agree to summarize,compile, or tailor electronic data in a particular manner or medium and mayagree to provide the data in an electronic format to which it is not readilyconvertible.

25-19-101. Title.

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