Navigating FOIA Requests: You Have to Start Somewhere
By Lindsey French
AAC Legal Counsel
County elected officials are getting more Freedom of Information Act (FOIA) requests than ever before. Many of these are legitimate requests from Arkansas citizens or businesses, exercising their rights to access government transparency, and should be addressed with the prompt attention they deserve. With the sheer number of FOIA requests inundating local governments, I hope your office is fortunate enough to have the resources to hire someone to focus their attention on citizen requests for public records. However, having worked with county officials for nearly 12 years now, I know this is not the case in most offices. Fortunately, many of these requests can be filtered out by a few gatekeeping measures, allowing you to focus on legitimate requests from Arkansas citizens.
Arkansas FOIA is for Arkansas citizens
Arkansas Code § 25-19-105(a)(1)(A) states, “public records shall be open to inspection and copying ... by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.” Case law has interpreted “citizen” to include corporations authorized to do business in Arkansas. The first thing you should look at when you receive a FOIA request is who the requester is. If it is an individual that resides out of state, you generally do not have to fulfill the request. The same goes for corporations outside of Arkansas.
For individuals, I believe you are within your rights to ask someone for their Arkansas address of residence before fulfilling their request. Many requests will come with only an email address or a phone number that has an out of state area code. The only way to verify they are an Arkansas citizen is to ask them for some kind of proof of their Arkansas address. Some county attorneys advise county officials to request a driver’s license, utility bill, or other proof of Arkansas residence.
For corporations, it is pretty simple. If they have an Arkansas address, they are entitled to make FOIA requests. If they are located outside of Arkansas, you can go to the Arkansas Secretary of State’s website and do a Business Entity Search to see if they are registered and in good standing to do business in the state of Arkansas. If so, I would generally consider the corporation eligible to make a request under Arkansas FOIA.
Arkansas FOIA is for requesting public records
Once you have determined the request is from an Arkansas citizen, as defined for Arkansas FOIA purposes, you should look to the actual substance of the request. As previously mentioned, § 25-19-105(a)(1)(A) provides, “public records shall be open to inspection and copying ....” “Public records” is broadly defined within the FOIA to include almost any document, writing, recording, etc. kept in a public office. There are a myriad of exceptions that I won’t touch on in this article, as well as personal records that do not relate to the “performance or lack of performance of official functions” or are not “within the scope of their employment” that are not subject to FOIA requests.
Most importantly, the FOIA guarantees Arkansas citizens the right to request public records, not information. FOIA requests that present mere questions or requests for information are not proper requests. Common instances of this are requests that ask for legal advice, technical assistance, your opinion on a matter, etc. It doesn’t matter the substance of the request, if the request is asking you for an opinion or information that is not found in a public record kept in your office, you do not have to fulfill the request.
Custodians must only provide records they possess
At this point, you have determined that the request is from an Arkansas citizen and that it is for a public record. § 25-19-103(7)(A) defines a public record as one that is “required by law to be kept or otherwise kept ....” There are laws about the retention of county records and how long those records must be kept. Those records are public records as long as they are kept in your office, whether within the statutorily required time frame, or after. Additionally, there are many public records in your office such as emails, notes, correspondence with the public — the list is endless — that do not have to be kept for a certain period or kept at all. However, if you do keep those records, they are public records that are subject to Arkansas FOIA requests.
An Arkansas citizen may also request a record from you that you do not possess. In 2023, there was a massive public push from a national pillow salesman to inundate county clerks with requests for certain documents related to voting machines. The voting machines used in Arkansas did not produce these specific reports; therefore, Arkansas county clerks did not possess these records. If someone requests a record that you do not have custody of, you should respond that no such record exists in your custody. There is a caveat here that if they simply asked the wrong department or county office, you should direct them to the custodian of an existing record if possible.
Additionally, if a county official utilizes an outside vendor to store its records electronically, the county must maintain administrative control over those records and turn them over if requested by an Arkansas resident.
Finally, under §25-19-105(d)(2)(C), a “custodian is not required to compile information or create a record in response to a request ....” Often, county officials will get a request for a report that contains a complete list of county employee names, addresses, date of hire, ethnicity, base pay, overtime pay, bonus pay, etc. You can likely easily run a file in your payroll software that would give you most of the information requested. This would likely satisfy the request. You do not have to compile special reports of information or create a record if one does not exist or is not accessible on software that is readily available.
In conclusion, this article is intended to help you wade through the influx of FOIA requests all county offices receive. I know it can be overwhelming trying to respond to them while keeping your office running smoothly. If you’ll consider these three points first before looking at the substance of the request, you’ll be able to cut down on at least a portion of your requests immediately, and that means more time for you and your employees to do the job you were elected or hired to do.
