Arkansas Freedom of Information Act
aka: Freedom of Information Act
The Arkansas Freedom of Information Act (FOIA), signed into law by Governor Winthrop Rockefeller on February 14, 1967, is generally considered one of the strongest and best models for open government by investigative reporters and others who research public records for various purposes. The intent of the FOIA is to keep government business and government records open and accessible to the people of Arkansas. The Arkansas FOIA has been called “the people’s law” in that it provides the citizens of Arkansas open access to the conduct of the public’s business at every level of government, as well as ready access to public records on file with a host of custodians for those records in county courthouses, city halls, public schools, and other public facilities across the state.
The passage of the Arkansas FOIA did not come without a legislative struggle. At that time in Arkansas’s history, the bulk of the political power in Arkansas was held in the hands of a few. That included local political machines from the municipal level up to and including government at the state level. State senator Ben Allen, a Little Rock (Pulaski County) attorney, and state Representative Leon Holsted, a North Little Rock (Pulaski County) druggist, both legislative leaders at the time, were the lead sponsors on the original bill. Shortly after Gov. Rockefeller signed the bill into law, the FOIA was tested in court in a lawsuit that went all the way to the Arkansas Supreme Court, where the justices ruled unanimously in favor of preserving the Arkansas FOIA. The bulk of the opposition to the passage of the law, and those initiating early court challenges to the law, were those desiring to preserve the status quo of doing the public’s business behind closed doors and out of view of the taxpaying public. In contrast to this was the Arkansas Supreme Court’s opinion, written by then associate justice George Rose Smith, which read: “It is vital in a democratic society that public business be performed in an open and public manner. We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.” When Gov. Rockefeller left office in 1971 he pointed to the passage of the Arkansas Freedom of Information Act as one of the crowning achievements of his administration.
Initially called Act 93 of 1967, the “Arkansas Freedom of Information Act of 1967” is codified as Arkansas Code Annotated 25-19-101-109 et seq. It is brief, but its plain language leaves little room for interpretation. When interpretation has been needed, the courts of Arkansas have generally favored openness of government and government records.
The FOIA provides guidelines on what constitutes a public meeting and provides requirements for notifications when regular or special meetings of public governing bodies are scheduled. Under the law, a meeting is defined as a gathering of any bureau, commission, or agency of the state, including municipalities, supported wholly or in part by public funds or that are expending public funds. The FOIA also establishes what qualifies as a public record and provides guidelines for public access to those records. Violators of the law may be found guilty of a Class C misdemeanor, with a maximum penalty of a $100 fine and thirty days in jail.
The Arkansas FOIA continues to be updated to accommodate changes in technology that allow electronic access to public records, including court records. While none of this was necessary at the time of the passage of the FOIA, technology has significantly changed the way Arkansans and others do business, including the conduct of research through access to public records.
Since being signed into law, the Arkansas FOIA has been amended several times. These exemptions, created by the Arkansas legislature, amend the law to specifically protect such things as grand jury minutes, adoption records, and the identity of law enforcement officers currently working undercover, along with other protections. However, some exemptions have been controversial. For example, in March 2017, an exemption which became law under Governor Asa Hutchinson prevents the disclosure of any information regarding the police force that serves the Arkansas State Capitol. On April 5, 2021, the Arkansas House of Representatives passed HB 1280, which would allow city and county government boards to meet in secrecy (with attorneys) for purposes of economic development. However, in the Senate, the bill failed to make it out of committee.
The 2019 Arkansas Supreme Court case of City of Fort Smith v. Wade largely undid the traditional definition of a “meeting,” which had previously required public notification, and thus opened the door for more informal assemblies to conduct government business. That same year, the Arkansas Court of Appeals ruled in Pulaski County Special School District v. Delaney that requests for records under FOIA specifying delivery in an electronic format and e-mailed to the person requesting must be provided in such a manner should the agency have the capability. In 2020, the Arkansas Court of Appeals ruled in Ben Motal v. City of Little Rock that individuals had the right to copy public records using their own devices at no cost. This ruling was backed up by Act 310 of 2021, which amended the FOIA to permit “copying through image capture, including still and moving photography and video and digital recording.”
The 2023 legislative session witnessed dueling attempts to modify the state’s FOIA. Sen. Alan Clark of Lonsdale (Garland County) SB382, which would specify that two or more members “of a governing body of a public entity shall neither discuss, deliberate, nor decide public business of a governing body or of a public entity in circumvention of the spirit and express requirements” of the law “during any chance interaction, informal assemblage, or electronic communication.” It failed to get a motion in the Senate. Clark also filed SB381, which would have required members of the governing body of any city, county, or school board to attend a yearly one-hour training on FOIA, but it was voted down in the Senate. He also filed SB380, which would require custodians of public records to respond in writing if the requested records did not exist or were covered by an exemption; it passed, becoming Act 879. Taking a different approach, Rep. Mary Bentley of Perryville (Perry County) filed HB1610, which would have permitted public officials to meet and discuss policy in secret so long as an official quorum was not present; this bill failed to pass out of committee on March 15, 2023, but, after being amended to reduce the number present to one-third of the official body, it passed out of committee on March 29, 2023, and passed the full House the following day. However, the bill died in a Senate committee on April 4, 2023. Likewise, Rep. David Ray of Maumelle (Pulaski County) filed HB1726 on March 27, 2023, a bill that would create FOIA exemptions for records such as drafts, notes, memoranda, correspondence, and more; the bill also allowed the government to charge not just for the cost of making copies but for the labor it takes to retrieve and process records, should that time exceed eight hours, according to “the salary or hourly pay 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.” Governor Sarah Huckabee Sanders indicated her support of Ray’s bill. Robert Steinbuch, a professor at the University of Arkansas at Little Rock William H. Bowen School of Law and a columnist for the Arkansas Democrat-Gazette, described the bill as “literally the worst proposal I’ve seen for the Freedom of Information Act in the almost 20 years I have been in Arkansas.” HB1726 failed in committee on March 29, 2023.
The Office of the Arkansas Attorney General and the Arkansas Press Association jointly publish a handbook on the Arkansas FOIA.
For additional information:
Arkansas Freedom of Information Handbook. 18th ed. Little Rock: Arkansas Press Association, 2017. Online at https://www.arkansaspress.org/page/foihandbook (accessed March 2, 2022).
Bowden, Bill. “House Passes Revamping of Meetings Law.” Arkansas Democrat-Gazette, March 31, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/31/foi-meeting-bill-passes-arkansas-house-heads-to/ (accessed March 31, 2023).
———. “‘Of a Quorum’ Bill Would Add 3 Words to Act.” Arkansas Democrat-Gazette, March 14, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/14/arkansas-house-bill-would-define-meeting-as/ (accessed March 14, 2023).
———. “Task Force: Record-Act Limits Bad.” Arkansas Democrat-Gazette, March 30, 2023, pp. 1A, 9A. Online at https://www.arkansasonline.com/news/2023/mar/29/foi-task-force-opposes-bills-to-weaken-the/ (accessed March 30, 2023).
Earley, Neal. “Another Bill Filed to Amend Records Act.” Arkansas Democrat-Gazette, March 28, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/28/rays-bill-would-amend-freedom-of-information-act/ (accessed March 28, 2023).
Canfield, Jerry L. “To Meet or Not to Meet, That is the Question: An Analysis of the Meeting Requirement of the Arkansas Freedom of Information Act.” Arkansas Law Notes, May 2023. Online at https://scholarworks.uark.edu/arlnlaw/14 (accessed May 15, 2023).
———. “Proposed Easing of Meetings Law Fails Panel Vote.” Arkansas Democrat-Gazette, April 5, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/apr/05/bill-that-would-allow-elected-officials-to-meet/ (accessed April 5, 2023).
Ellis, Dale. “Bill to Narrow Records Act Rejected by House Panel.” Arkansas Democrat-Gazette, March 30, 2023, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2023/mar/30/bill-to-narrow-records-act-rejected-by-house-panel/ (accessed March 30, 2023).
Flaherty, Joseph. “Curb on Open Meetings Law Clears House.” Arkansas Democrat-Gazette, April 6, 2021, pp. 1B, 3B.
“Information Bill Gets No ‘No’s’ in House Vote.” Arkansas Gazette, February 3, 1967, p. 2A.
“Senate Sends Open Meeting Bill to WR.” Arkansas Gazette, February 14, 1967, p. 10A.
Watkins, John J., Richard J. Peltz-Steele, and Robert Steinbuch. Arkansas Freedom of Information Act. 6th ed. Fayetteville: University of Arkansas Press, 2017.
Arkansas Press Association
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