The following template is for journalists seeking to compel a state or local government agency (or a non-governmental entity that is supported by or expends public funds) to turn over public records requested under the Arkansas Freedom of Information Act (FOIA).1 The template provides a general outline for complaints filed in Arkansas state circuit court with areas for editing in brackets. Arkansas does not require that an administrative appeal be submitted prior to the initiation of a lawsuit.
The following explains the process:2
1. Request documents from the agency:
Under the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 to 25-19-110, “any citizen of the State of Arkansas” may inspect and copy public records unless the records are specifically exempted from disclosure.3 The term “citizen” includes a corporation doing business in the state.4 A requestor’s purpose or motive in seeking access to records is usually immaterial.5
Requests to inspect, copy or receive copies of records should be directed to the “custodian” of the records,6 which is defined as “the person having administrative control of [the records].”7 The Arkansas FOIA states that requests may be made in person, by telephone, by mail, by facsimile transmission, by electronic mail, or by other electronic means provided by the custodian.8 It also requires the request to “be sufficiently specific to enable the custodian to locate the records with reasonable effort.”9 While records can be requested orally, a written request is advisable because it provides a record of the request in the event that litigation is necessary.
If requested records are not immediately available for inspection because they are in “active use or storage,” the statute requires them to be made available within three working days of the FOIA request.10 However, Arkansas’ Attorney General has indicated that the custodian may nevertheless have a “reasonable time” to respond to the request if the records are voluminous or if they must be reviewed to decide whether an exemption applies.11 Reasonableness is determined on a case-by-case basis. If there is a delay in receiving access to requested records, an informal telephone inquiry as to status is often advisable prior to filing a lawsuit.
If a citizen requests copies of public records, rather than an opportunity to inspect them at the records’ location, the custodian may charge the requestor for the actual costs of reproducing the records and the actual cost of mailing or transmitting the records.12 The custodian may require payment of the charges in advance if the estimated costs exceed $25.00.13
2. Appeal denial of a request to an Arkansas circuit court:
If an agency denies all or part of a citizen’s request for public records, the citizen may immediately appeal the denial by filing a complaint in an Arkansas circuit court.14 If the agency that denied the records request is an agency, department or institution of the state, the requestor must file the complaint in the Pulaski County Circuit Court or the circuit court of the judicial district in which the requestor resides.15 If the entity that denied the records request is an agency of a county, municipality, township or school district, or is a private organization that is supported by or expends public funds, the complaint must be filed in a circuit court in one of the “appropriate judicial districts.”16 If the entity is a public school district, the appropriate judicial district is the county in which the public school district is located or has its principal office.17 For other local government entities, the appropriate judicial districts are the county where the entity is located and the county where the citizen resides.18
The appropriate circuit court may issue orders to enforce a citizen’s right to inspect and copy public records under FOIA. The typical FOIA case addresses a denial of the request for access to the records, with the court deciding whether particular records are exempt from disclosure. If the citizen substantially prevails and the defendant is a local government agency or nongovernmental agency, the court may require the defendant to pay the citizen’s reasonable attorney’s fees and litigation expenses, unless it finds that the defendant’s position was substantially justified.19 If the citizen substantially prevails and the defendant is an agency of the state (as opposed to a local government agency or a non-governmental agency), a request for an award of attorney’s fees and litigation costs must be made to the Arkansas Claims Commission, rather than to the court.20
1 As used in the Arkansas FOIA, “public records” are materials “required by law to be kept or otherwisekept 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.” Ark. Code. Ann. § 25-19-103(6)(A).
2 For more information, please consult the Arkansas Open Government Guide at http://www.rcfp.org/arkansas-open-government-guide.
3 Ark. Code. Ann. § 25-19-105(a)(1). There is an exception that precludes a citizen from obtaining access to public records if, at the time of the request, he or she is an incarcerated felon. Id.
4 Arkansas Hwy & Transp. Dep’t v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988).
5 E.g., Ark. Op. Att’y Gen. No. 2003-325; Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).
6 Ark. Code Ann. § 25-19-105(a)(2)(A).
7 Ark. Code Ann. § 25-19-103(1)(A).
8 Ark. Code Ann. § 25-19-105(a)(2)(B).
9 Ark. Code Ann. § 25-19-105(a)(2)(C).
10 Ark. Code Ann. § 25-19-105(e).
11 Ark. Op. Att’y Gen. Nos. 2000-059, 99-157, 98-223, 96-354, 94-225.
12 Ark. Code Ann. § 25-19-105(d).
14 Ark. Code Ann. § 25-19-107(a).
17 Ark. Code Ann. § 16-60-109.
18 Ark. Code Ann. § 16-60-101(a).
19 Ark. Code Ann. § 25-19-107(d).
20 Ark. Code Ann. § 25-19-107(e).