Are the meetings and records of a committee or subcommittee created by an Arkansas state board open to the public under the FOIA?

Plain-English summary

Senator Linda Chesterfield asked whether committees appointed by a state agency board have public records and open meetings. The AG said the records of all three kinds of committees he described are subject to the Arkansas FOIA. Whether their meetings are covered depends on who sits on the committee and, for some committees, whether it makes decisions.

• A complete subgroup consists entirely of members of the parent governing body. Its records and meetings are covered.
• A partial subgroup combines more than one member of the parent body with outsiders. Its records are covered. Its meetings ordinarily turn on whether it has decision-making authority.
• An outside group has no parent-body members but was created by that body. Its records are covered. Its meetings also turn on decision-making authority.

For partial and outside groups, the AG treated authority as delegated when the parent body gives the group a decision to make, such as narrowing a candidate pool. Authority can also exist in practice when the parent body rubber-stamps the group's recommendations. A group that only recommends, gathers information, or advises is an advisory body: its records are covered, while its meetings are not covered by the open-meetings provision on that basis.

The AG did not address records exemptions or rules allowing a covered meeting to move into a closed executive session. He also noted that neither the FOIA nor Arkansas appellate courts had defined “governing body” for this purpose.

Currency note

This opinion was issued in 2014. Verify the current FOIA and later decisions before relying on its treatment of a particular committee.

Common questions

Does every committee created by a state agency board have to open its meetings?
No. A committee made entirely of board members has covered meetings. For a group with outside members, the answer ordinarily depends on whether it has delegated or practical decision-making authority.

What if a committee only recommends action?
If it has no delegated or practical decision-making authority, the AG classified it as advisory. Its records remain covered, but its meetings are not covered by the open-meetings provision on that basis.

Does a parent board's final vote mean its committee is merely advisory?
Not necessarily. The AG gave a committee delegated authority to narrow a candidate pool as one example of decision-making. He also treated routine rubber-stamping of recommendations as evidence of practical authority.

Does this opinion decide whether a covered committee may enter executive session?
No. The AG expressly left closed-session provisions and records exemptions outside his response.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-124

November 19, 2014

The Honorable Linda P. Chesterfield
State Senator
#12 Keo Drive
Little Rock, Arkansas 72206

Dear Senator Chesterfield:

You have asked for my opinion regarding the following two questions on the Freedom of Information Act (FOIA):

1. Under Arkansas law, when the state board of a state agency appoints (or nominates) a committee/subcommittee to serve in any capacity, is the committee/subcommittee and any actions taken by it or its members subject to the FOIA?

2. Under Arkansas law, when the state board of a state agency appoints (or nominates) a committee/subcommittee to serve in any capacity, are the committee/subcommittee meetings open to the public?

RESPONSE

I must start by clarifying your first question. The FOIA applies to all government organizations, including groups created by or from such organizations. Strictly speaking, therefore, a committee or subcommittee of a state agency is "subject to the FOIA." Your first question seems to be asking whether such a group's records qualify as "public records" under the FOIA. And your second question is whether such a group's meetings qualify as "public meetings" under the FOIA. [Footnote: Because you do not ask, I will not address any potential records exemptions or meetings provisions that might allow the meetings to be held in closed session (i.e. an "executive session").]

There are three general types of groups created by or from a public organization. Depending on the facts, the FOIA applies differently to each type:

• Type 1, complete subgroup. This type of group is composed entirely of members from the parent, governing body. The records and meetings of a complete subgroup are both subject to the FOIA. So, if you are asking about a complete subgroup, then the answer to both your questions is "yes."

• Type 2, partial subgroup. This type of group is composed of more than one member of the parent body together with members from outside the governing body. The records of a partial subgroup are subject to the FOIA. Whether a partial subgroup's meetings are subject to the FOIA ordinarily depends on the nature of the group's decision-making authority, which is explained more fully below. So, if you are asking about a partial subgroup, then the answer to your first question is "yes," and the answer to your second question depends on the analysis below.

• Type 3, outside group. This type of group has no members of the parent body and is composed entirely of members who are selected from outside the parent body. The records of an outside group that was created by the parent, governmental body are subject to the FOIA. Whether a partial subgroup's meetings are subject to the FOIA depends on the nature of the group's decision-making authority, which is explained more fully below. So, if you are asking about an outside group, the answer to your first question is "yes," and the answer to your second question depends on the analysis below.

The only remaining question is whether the meetings of a partial subgroup and an outside group (respectively) are considered "public meetings" under the FOIA. Partial subgroups and outside groups can be classified as either "governing bodies" or "advisory bodies." The FOIA's open-meetings provisions only apply to "governing bodies": "[A]ll meetings, formal or informal, special or regular, of the governing bodies of all . . . organizations of the State of Arkansas . . . shall be public meetings." Neither the FOIA nor Arkansas's appellate courts have addressed what it means to be a "governing body." Nevertheless, this office (and the leading commentators on the FOIA) have consistently opined that a governing body is one with decision-making authority.

Type 2 and Type 3 groups can have decision-making authority that is either delegated or de facto. An example of the former would be where a search committee was delegated the authority to whittle the entire pool of candidates for a position down to a shorter list and submit the short list to the parent body for its decision from among the remaining candidates. An example of the latter would be where, though no formal decision-making authority was delegated to a Type 2 or 3 group upon its creation, the group's recommendations are "rubber-stamped" by the parent entity.

If a Type 2 or 3 group lacks decision-making authority (whether delegated or de facto) then it is considered an "advisory body," which means that it exists only to make recommendations, collect information, or give advice. The upshot of a group being classified as an "advisory body" is that, though its records are subject to the FOIA, its meetings are not. Two leading commentators on the FOIA note that, though this result is "seemingly contradictory," it is required by the language of the FOIA:

Insofar as records are concerned, the Arkansas courts need not draw a line between a governing body and one that is merely advisory, for the FOIA applies to the records of any entity "wholly or partially supported by public funds or expending public funds." Because advisory bodies established by government agencies [which are the only type under consideration in this opinion] generally receive direct public funding for their activities and are involved in matters of public concern, their records are subject to the act. . . . A different result is required with respect to the meetings of advisory committees, because the FOIA's open meeting provisions apply only to "governing bodies."

In summary, if you are asking about a complete subgroup, then the answer to your two questions is "yes." If you are asking about either a partial subgroup or an outside group, then the answer to your first question (i.e., whether the records are covered) is "yes"; and, with the possible exception mentioned in note nine, the answer to your second question (i.e., whether the meetings are covered) depends on the nature of the group's decision-making authority.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Attorney General

DM/RO:cyh