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 a committee or subcommittee created by an Arkansas state agency board is subject to the FOIA, and whether its meetings are open to the public.

AG Dustin McDaniel reframed the questions and built a three-category framework that has become a standard reference point for Arkansas FOIA committee analysis:

Type 1: Complete subgroup. Composed entirely of members of the parent body. Records and meetings are both open under the FOIA, no further analysis required. This is the Pickens line: a committee made up only of parent-body members "is itself a governmental body" on a smaller scale, and the open-meetings duty follows.

Type 2: Partial subgroup. Composed of more than one parent-body member plus outsiders. Records are open. Meetings turn on whether the committee has decision-making authority, delegated or de facto. If it does, open meeting; if not (it is purely advisory), closed meeting permitted but records still open. A footnote also says that if a Type 2 group is composed of a "significant number" of parent-body members, the meeting may effectively be a meeting of the parent body itself and must be open even if the committee is otherwise advisory.

Type 3: Outside group. Composed entirely of non-parent-body members but created by the parent body. Records are open. Meetings turn on whether the outside group has decision-making authority. Baxter County Newspapers is the canonical example: a committee of doctors entirely outside the hospital governing body still had to meet in public because it had been delegated the authority to decide which doctors could practice at the hospital.

The "decision-making authority" line is crucial and the AG draws it carefully:

• Delegated authority: the parent body formally hands off a decision (or a screening step that materially shapes the decision, like reducing a candidate pool to a short list).
• De facto authority: the parent body has not formally delegated authority but routinely rubber-stamps the committee's recommendation. The relevant question is the manner of the parent body's review, not whether it reaches the same conclusion.

Groups without delegated or de facto decision-making authority are "advisory bodies." Their records are open under the FOIA's broad records-coverage language (any entity wholly or partially supported by or expending public funds), but the open-meetings provision is narrower and reaches only "governing bodies." So advisory bodies have a seemingly contradictory but textually required split: records open, meetings can be closed.

The AG explicitly does not address executive-session exemptions; the question was scope, not when an open meeting can move into closed session.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the legal distinction the AG used to separate open-meeting from closed-meeting committees?
The FOIA's open-meetings provision, A.C.A. § 25-16-106(a), only reaches "governing bodies." The AG uses "governing body" as a synonym for "body with decision-making authority." If a committee is purely advisory, it is not a governing body, and the open-meetings provision does not reach it.

Why are advisory body records open if their meetings can be closed?
The FOIA's records provision is much broader than its meetings provision. Records are open for any entity "wholly or partially supported by public funds or expending public funds." That picks up almost every committee a public body creates. The meetings provision uses the narrower "governing body" term, and that is what creates the split.

What is "de facto" decision-making authority?
The parent body has not formally given the committee a final decision, but the parent body habitually accepts whatever the committee recommends without independent review. In that situation, the committee is the de facto decisionmaker, even though it lacks formal authority. The AG cautions that the relevant question is the parent body's review process, not the outcome (i.e., reaching the same conclusion as the committee is not enough by itself; the question is whether the parent body actually reviews).

When does a Type 2 group's composition alone trigger open meetings?
The AG references the "significant number" exception from prior opinions: if a partial subgroup is composed of a significant number of parent-body members, the meeting may effectively be a meeting of the parent body. In that scenario, the open-meetings rule applies to the parent body via the smaller group, not because the smaller group is itself a governing body.

Does this framework apply to local government as well?
The opinion answers a state-agency-board question but the framework derives from general FOIA doctrine and is not state-only. The same three-category analysis is regularly used for municipal and county committees by Arkansas custodians and courts.

Background and statutory framework

The Arkansas FOIA's public-meetings provision, A.C.A. § 25-16-106(a), declares that "[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." The records provision, in A.C.A. § 25-19-101 et seq., reaches any entity wholly or partially supported by public funds or expending public funds. The textual breadth difference between the two provisions drives the split between open records and (sometimes) closed meetings.

The opinion synthesizes prior AG opinions (2003-170, 98-169, 2000-260, 2006-194, 92-241, 94-339, 2006-059) and the Watkins & Peltz treatise into a usable three-category framework. The Pickens case (1975) is the foundation for Type 1 (subgroups of parent-body members must meet in public). Baxter County Newspapers (1981) is the foundation for Type 3 (outside groups with delegated decision-making authority must meet in public).

Watkins & Peltz observe that the records/meetings split for advisory bodies is "seemingly contradictory" but compelled by the textual difference between the two FOIA provisions. The AG explicitly adopts that view.

The AG declines to address executive-session exemptions, which would be a separate question even for committees clearly subject to the open-meetings provision.

Citations

• A.C.A. § 25-16-106(a) (FOIA open-meetings provision, "governing bodies")
• A.C.A. § 25-19-101 et seq. (FOIA records provision)
• Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (Type 1 foundation: subgroups of governing-body members must meet in public)
• Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981) (Type 3 foundation: outside committees with delegated authority must meet in public)
• Op. Att'y Gen. 2003-170, 98-169, 2000-260, 2006-194, 92-241, 94-339, 2006-059
• Watkins & Peltz, The Arkansas Freedom of Information Act (5th ed. 2009)

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