The Arkansas Freedom of Information Act (AFOIA), detailed in Arkansas Code Annotated § 25-19-101 et. seq., is a transparency law that allows residents of Arkansas an insight into what their government is doing. Residents achieve this transparency when the government makes available to them public records, subject to some exemptions.
The best part is if they don’t give you the information that you had a right to have, then you can sue them for attorney’s fees.
The first step in utilizing the Arkansas Freedom of Information Act Request is to determine which Arkansas state governmental agency possesses the information you seek. If you are inquiring about police reports, then the agency you would send a freedom of information request (a.k.a. FOIA request) to is likely the county, city, or state police where the incident of the subject matter occurred or where the subject of the FOIA request resides. If the Arkansas State Police were involved, then you could FOIA that agency. However, you are not limited to sending FOIAs to law enforcement agencies. You may send FOIA requests to your local school board, your city’s board of directors, the Secretary of State, your county’s Department of Human Resources, or any other state or local agency.
Once you have determined the correct agency to receive your Freedom of Information Act Request, you must make sure it is submitted to the proper person. This is usually the agency’s Custodian of Records. Sometimes, they will forward this request on to the agency’s attorneys. For example, if you are sending a FOIA request to the Arkansas State Police, as of the time of this blog (10/1/2017), the Custodian of Records that would receive your request would be Public Information Officer Bill Saddler at Bill.Sadler@asp.arkansas.gov . You would send your FOIA request directly to him, or directly to whomever is the Custodian of Records for whichever governmental agency you are sending your request.
Next, determine the type of record you are seeking. Under the Arkansas Freedom of Information Act request, public records subject to inspection include: “…writings, recorded sounds, films, tapes, electronic or computer based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency, or any other agency or improvement district that is wholly or partially supported by public funds or expending public funds.” So, what does this mean? Your local school board meeting minutes and agendas may be subject to AFOIA. A police officer dash cam video may be subject to AFOIA. Your city director’s emails to one another may be subject to AFOIA. Your high school principal’s emails may be subject to AFOIA.
Now that you know what kinds of records are subject to examination by the public, you should tailor a request. Here is an example of a request our office routinely sends out to request emails and text messages of public officials:
To: (Name of the Custodian of Records), Public Information Officer for (Agency receiving your request)
From: (Your name), Arkansas Resident.
About: Freedom of Information Act Request regarding (Subject matter of your request)
Dear (Name of the Custodian of Records),
Under the authority of the Arkansas Freedom of Information Act, I request all of the following information within your ability to procure:
-All emails to and from (Subject of request) from (time period desired), using (official email address) and any other email she has used during the course of business.
-All text messages to and from (Subject of request) on his/her cell phone number (provide number) and all other phone numbers under his/her control. These text messages are subject to FOIA because she has used this and other cell phone numbers to communicate in the normal course of business as a public employee.
If there is exempt information in these emails or text messages, please provide those emails and text messages in a redacted form. If this FOIA request is denied in whole or in part, please state the reason for each denial.
Also, let this FOIA serve as notice of potential pending litigation, and that all emails and text messages should be preserved from this point forward in order to comply with the Arkansas Rules of Civil Procedure.
Method of Delivery: Please have these e-mails and text messages available in a searchable electronic format, preferably sent to this email address or a Dropbox or Google Drive. If that is not feasible I can provide a CD or thumb drive, please do not print these emails or text messages. I will pay up to $25 for this FOIA. If the cost exceeds $25, please call me to confirm the additional expenditures.
If any information is withheld please state the reason why and cite the appropriate exemption.
Please deliver the requested materials to:
(Your name and address)
Or please have the information available for my procurement at any of the official offices. If you have any questions, please call:
(Your name and phone number)
Thank you for your attention to this matter.
Please bear in mind that this is simply one example of one type of FOIA request. In addition to requesting an Arkansas state government employee’s official emails, you may also be able to request notice of meetings, Arkansas state government tax information, expense reports, and a plethora of other documents. Feel free to tailor the above-provided request to meet your needs.
After your request is sent, the Custodian of Records must respond to your request within a statutorily defined amount of time. This is generally within three business days of the initial request. By that time, the Custodian of Records should have reached out to you to let you know that they have received your request, and sometimes to work out how you will receive it. If there is a lot of information requested, or if the custodian has to sift through many records, they will often ask for a period of time to conduct their search. Additionally, they may coordinate with you in what medium you desire the requested information, such as a searchable PDF document, or paper copies. Be aware that you may be charged, but only for the actual cost of obtaining copies and perhaps the cost of mailing them to you.
Sometimes, FOIA requests are denied or redacted because the information contained in the public record is exempt from disclosure. Arkansas law provides for less than two dozen exemptions, plus an exemption that includes confidentiality provisions of other statutes. For an exemption to apply, it must be directly addressed by the AFOIA; otherwise, the exemption must be so narrowly construed as to err on the side of disclosure. Any unclear or ambiguous exemption must be interpreted in the favor of disclosure. If a record contains both exempt and unexempt information, the record must be released with the exempt material redacted.
As a result, AFOIA was built in the spirit of transparency: if it seems unclear if a record should or should not be released, the law interprets the exemptions narrowly and errs on the side of disclosure. An open and transparent government, even on the most basic, local level, ensures that your tax dollars are spent as they should be; that government officials are not making behind-the-scenes deals, or selling out their constituents; and, most importantly, that corruption is kept at bay. These laws are accountability laws, and while they may not generate a lot in the way of money awards for damages for potential litigants, they benefit society as a whole.
If you have filed a FOIA request that you feel was wrongly denied, be sure to consult with our Fayetteville or Fort Smith lawyers. Our attorneys have experience litigating a number of AFOIA violations, and we would be happy to review your case. While you may not be entitled to a windfall in cash for the violation, you may be entitled to the information you seek. Knowledge is power, and you cannot put a price on that.
Sources not mentioned in the article: