Under the Arkansas Freedom of Information Act, must the Arkansas Home Inspector Registration Board release complaints filed against home inspectors and supporting documents attached to those complaints?
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Plain-English summary
The Arkansas Home Inspector Registration Board handles complaints against home inspectors through a standardized process: the complainant submits a Board-provided complaint form, a copy of the home inspection report, correspondence with the inspector, and any other exhibits. The Board sends those documents to the inspector and asks for a response. All the documents go to a Complaint Committee for review. The interim executive director asked which of these records the FOIA required the Board to disclose, and at what stage in the process.
The AG split the answer into three buckets.
Complaints themselves are public records and must be disclosed. The complaint form is something the Board developed and the complainant completed at the Board's instruction. Past AG opinions had consistently treated complaint forms as public records. Neither of the statutes the Board asked about, § 17-52-307 (home-inspector-specific) and § 25-19-105(b)(9)(A) (FOIA's competitive-advantage exception), shielded the complaint.
The AG worked through § 17-52-307 carefully. Subsection (f) exempted "work papers" from the FOIA's definition of public record, but "work papers" is clearly distinguished from "complaints" in the statute itself (which talks about "work papers submitted to the board for action on complaints"). So subsection (f) covered the documents the inspector or complainant submitted to back up the complaint (inspection reports, correspondence) but not the complaint itself. Subsection (c) talked about "any documents submitted to the board," language that read in isolation might be broad enough to cover complaints. But read in context, subsections (a) through (d) all deal with documents submitted by the inspector at the Board's request, not documents submitted by complainants. And the narrow-construction rule for FOIA exemptions (Laman v. McCord, Stilley v. McBride) required the more limited reading.
As for the competitive-advantage exception in § 25-19-105(b)(9)(A), the AG read it to cover trade secrets and proprietary information that businesses submit to satisfy regulatory requirements (citing Watkins and Peltz at p. 164). A complaint can sometimes contain proprietary information, but most do not. The exception does not blanket-cover all home-inspector complaints. The AG also flagged the Board's framing: the Board appeared to worry that complaints would damage inspector reputations regardless of merit, but reputational harm is not the same as competitive harm in the trade-secret sense. Unfounded complaints can still be embarrassing or damaging, but the FOIA does not protect against that.
Supporting documents (the inspection report and the correspondence with the inspector) were a different story. Section 17-52-307(f) said: "All work papers submitted to the board for action on complaints and disciplinary procedures under this subchapter shall not be deemed public records under the Freedom of Information Act of 1967, § 25-19-101 et seq." Those documents, in context, were "work papers" within the meaning of the statute. The exemption was express and unambiguous. The Board did not have to disclose them.
On timing, the AG said the complaints were disclosable whenever an FOIA requester asked, without regard to whether the Board's investigation was pending or resolved. There is no built-in delay rule for unfounded or pending complaints in the FOIA, and the narrow-construction principle precluded reading one in.
Currency note
This opinion was issued in 2015. 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.
Background and statutory framework
The Arkansas Home Inspector Registration Board licenses and regulates home inspectors. Its complaint process was structured to handle consumer complaints about inspector conduct: the Board provided a complaint form, asked complainants to attach the inspection report and any relevant correspondence, gave the inspector a copy and asked for a response, and routed everything to a Complaint Committee.
Section 17-52-307 contained the Board-specific records rules. Subsections (a) through (d) deal with documents the Board requires the inspector to submit, including inspection reports, as part of an investigation:
- (a) authorized the Board to require the inspector to submit inspection reports and other documents.
- (b) overrode the inspector's contractual confidentiality obligations to clients for those Board-requested documents.
- (c) restricted what the Board could do with the documents: confidential, used only for the requested purpose, not for public viewing, not part of any official file, not revealed to nonboard members.
- (d) required the Board to return or destroy the documents when the investigation concluded.
Subsection (f) was the express FOIA exemption: "All work papers submitted to the board for action on complaints and disciplinary procedures under this subchapter shall not be deemed public records under the Freedom of Information Act of 1967, § 25-19-101 et seq."
The structure of subsections (a) through (f) drove the AG's reading. Because (a) through (d) all dealt with documents the inspector submitted at Board request, the AG read subsection (c)'s "any documents submitted to the board" as meaning "any documents submitted to the board by the inspector," not "any documents submitted to the board by anyone." That reading kept the complaints (submitted by the complainant) outside the exemption.
The FOIA's competitive-advantage exception in § 25-19-105(b)(9)(A) was a separate analytical track. The statute exempted public records that "if disclosed would give advantage to competitors or bidders." Watkins and Peltz's treatise read that exception as covering trade secrets and proprietary information businesses submit to satisfy regulatory requirements. A home-inspector complaint typically does not contain that kind of information. Specific complaints might (if they happen to reveal proprietary business processes), but the AG declined to read the exception as a blanket shield for the complaint class.
The narrow-construction principle came from Laman v. McCord (1968) and Stilley v. McBride (1998). Arkansas courts construe FOIA in favor of openness and read exceptions narrowly. When in doubt about an exception's meaning or application, the construction that exempts the fewest records prevails.
Common questions
Could the Board hold a complaint until the investigation is complete?
Not under FOIA. The AG said the complaint is disclosable whenever a requester asks, regardless of investigation status. The Board could not refuse on the ground that the investigation is pending.
What about the inspection report attached to the complaint?
Not disclosable. Inspection reports are "work papers" under § 17-52-307(f), expressly exempted from the FOIA's definition of public record.
What about correspondence between the Board and the inspector?
Same answer. Correspondence submitted as part of the Board's investigation is work papers and exempt.
Could a complaint reveal proprietary information that should not be released?
Possibly. The competitive-advantage exception under § 25-19-105(b)(9)(A) could apply if a specific complaint divulged trade secrets or proprietary information. But the exception did not blanket-cover all complaints. Each complaint would have to be evaluated on its own facts.
What if the complaint is unfounded? Can the Board withhold it?
No. The AG noted that even unfounded complaints are disclosable; the FOIA does not have an exception for unsubstantiated allegations. The Board could not use possible inaccuracy as a ground for withholding.
Could the inspector get a copy of the complaint?
Yes, both as a matter of due process (the Board notified the inspector of complaints and asked for a response) and as a matter of FOIA (the complaint is a public record available to anyone, including the inspector).
Source
Original opinion text
Opinion No. 2015-021
June 2, 2015
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Mr. Lowell Coomer, Interim Executive Director
Arkansas Home Inspector Registration Board
Post Office Box 251911
Little Rock, Arkansas 72225
Dear Mr. Coomer:
I am writing in response to a request from your immediate predecessor, on behalf of the Arkansas Home Inspector Registration Board, for an opinion on how the Arkansas Freedom of Information Act (FOIA) applies to certain records maintained by the Arkansas Home Inspector Registration Board regarding complaints against inspectors.
As background for the questions posed, it was explained that the "complaint process" usually starts by someone calling the Board's office to complain against an inspector. If the complaint falls within the Board's jurisdiction, the Board's staff ask the complainant to send the Board "(1) the complaint form along with a written description of the complaint; (2) a full copy of the completed home inspection report ...; (3) copies of any correspondence with the home inspector; and (4) any appropriate exhibits." Upon receiving these documents, the Board notifies the inspector, conveys to him or her copies of all the documents received from the complainant, and asks for a response to the complaint. Board staff convey all these documents to the Complaint Committee for review.
I have paraphrased the concerns into three questions about the documents generated in this "complaint process":
- In light of Ark. Code Ann. § 17-52-307 or § 25-19-105(b)(9)(A), must complaints filed against home inspectors be disclosed under the FOIA?
- In light of Ark. Code Ann. § 17-52-307 or § 25-19-105(b)(9)(A), must the supporting documents attached to complaints be disclosed under the FOIA?
- If either the complaint or the supporting documents must be disclosed under the FOIA, at which stage in the complaint process must they be disclosed?
RESPONSE
In my opinion, the answer to Question 1 is "yes," because such complaints are public records and neither statute referenced in your question exempts them from disclosure. The answer to Question 2 is "no," in my opinion, because section 17-52-307 exempts supporting documents from the definition of "public record." The answer to Question 3 is that the complaints are subject to disclosure whenever an FOIA requester seeks them, without regard to the pendency or outcome of the Board's investigation.
DISCUSSION
A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.
Public-Record Analysis
The first element is clearly met because the Board, as a public entity, is subject to the FOIA.
As for the second element, the FOIA defines a "public record" as (1) a "writing ... electronic or computer-based information," (2) that is "kept," and (3) that "constitute[s] a record of the performance or lack of performance of official functions." Under this definition, the complaint is, in my opinion, a public record. This is because the complaint form itself is something the Board has developed and the complainant completed the form at the behest of Board staff. This office has long held, in similar contexts, that complaint forms are public records and subject to disclosure. See Op. Att'y Gen. No. 2015-053 (collecting opinions).
In contrast, the supporting documents are not public records because Ark. Code Ann. § 17-52-307(f) expressly exempts them from the FOIA's definition of "public records": "All work papers submitted to the board for action on complaints and disciplinary procedures under this subchapter shall not be deemed public records under the Freedom of Information Act of 1967, § 25-19-101 et seq."
Based on the background information you provided, it appears that the supporting documents attached to complaints (i.e. inspection report and correspondence with the inspector) are work papers under this statute. Because the term "work papers" is not defined in section 17-52-307(f), the term must be given its general, common-sense meaning. In this case, the term appears to refer to documents generated by the inspector or the inspector's client regarding the inspection contract and the performance of that contract. Therefore, in answer to Question 2, the FOIA does not require that the supporting documents be disclosed in response to an FOIA request.
Exemption Analysis
The only remaining issue is the third element noted above; namely, whether there are any exemptions that shield the complaint from disclosure. Your correspondence specifically asks me to evaluate two potential exemptions: Ark. Code Ann. §§ 17-52-307 and 25-19-105(b)(9)(A). In my opinion, neither exception shields the complaint from disclosure.
Section 17-52-307, which expressly addresses access to Board records, contains two relevant provisions:
(c) Any documents submitted to the board as part of an investigation shall:
(1) Be considered as confidential documents;
(2) Be used only for the purpose for which they are requested;
(3) Not be available for public viewing;
(4) Not become part of any official file; and
(5) Not be revealed to any nonboard members.
(f) All work papers submitted to the board for action on complaints and disciplinary procedures under this subchapter shall not be deemed public records under the Freedom of Information Act of 1967, § 25-19-101 et seq.
A close examination of subsection -307(f) shows that it cannot be a basis for withholding complaints. This is because subsection (f) only exempts from disclosure "work papers." And "work papers" are clearly distinguished from complaints: "All work papers submitted to the board for action on complaints ...." Thus, subsection -307(f) is only addressing and exempting "work papers," not complaints. This conclusion is further buttressed by subsection -307(a), which makes it clear that "work papers" includes such documents as the inspector's "inspection reports and other documents" that were requested from the inspector by the Board.
A closer question is whether subsection -307(c) exempts the complaints. On an initial reading, the subsection seems very broad because it refers to "[a]ny documents submitted to the board." But, for the following two reasons, subsection (c) is, in my opinion, best read to mean "any documents submitted to the board by the inspector."
First, it is clear from subsection (c)'s context that subsections (a)-(d) are all addressing documents submitted by the inspector at the Board's request. To see this, note that subsection (a) authorizes the Board to "require an inspector to submit in writing inspection reports and other documents." Subsection (b) attempts to resolve any confidentiality concerns with the inspector submitting these documents to the Board: "Requests by the board for copies of inspection reports shall supersede any contract of client privacy or confidentiality." Subsection (c) then uses the phrase at issue, "any documents submitted to the board," when limiting what the Board may do with those documents after they have been submitted by the inspector. And subsection (d) concludes the matter by explaining what the Board must do with the documents at the investigation's conclusion: "When the action for which they were requested is completed by the board, the documents shall be returned to the inspector at his or her own expense or destroyed if the inspector requests that the documents be destroyed." Thus, when read in context, subsection (c) is referring to documents sent by the inspector, which means complaints are not included in subsection (c).
The second reason leading to this conclusion is grounded in the rules for interpreting FOIA exemptions. That Arkansas Supreme Court has held that the FOIA must be construed in favor of openness, and exceptions to disclosure must be narrowly construed. Accordingly, when there is a reasonable doubt about what an exception means, we are required to opt for the interpretation that exempts the fewest records. Likewise, when there is a reasonable doubt about how an exception applies to a given set of facts, we are required to opt for the application that exempts the fewest records. Thus, even if there were a reasonable doubt about subsection (c)'s meaning and application, one would be required to conclude that the provision does not exempt complaints.
Likewise, Ark. Code Ann. § 25-19-105(b)(9)(A) is not a basis for withholding the complaint. This statute, which establishes the so-called "competitive-advantage exception," exempts from disclosure all public records "that if disclosed would give advantage to competitors or bidders." This statute is referring to "trade secrets and other proprietary information that businesses submit to governmental entities to satisfy regulatory requirements." (John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 164 (Arkansas Law Press, 5th ed., 2009).) While it is conceivable that a complaint could divulge some proprietary information, it seems unlikely that all or even a large percentage of complaints would do so. Therefore, in my opinion, the competitive-advantage exception is not a basis for withholding all complaints without regard to their contents.
I note, as an aside, that the correspondence submitting the above questions for my opinion does not claim that the complaints do, in fact, convey proprietary information. Rather, the concern seems to be that the competitive-advantage exception might apply "due to," as stated, "the inherently damaging nature of the complaints." While the complaints, whether substantiated or not, may damage the business reputation of a given inspector, that (by itself) does not amount to a competitive-advantage exception. As noted above, the exception is focused on trade secrets or proprietary information. While any given complaint might contain some kind of proprietary information, there is no reason to think that all complaints do.
In summary, the answer to Question 1 is "yes," because the kinds of complaints at issue here are public records and they are not shielded from disclosure. The answer to Question 2 is "no," the supporting documents need not be disclosed because section 17-52-307(f) exempts the supporting documents from the FOIA's definition of a "public record." The answer to Question 3 is that the complaint is a nonexempt public record, and consequently, it is available upon request without regard to the pendency or outcome of the Board's investigation.
Sincerely,
Leslie Rutledge
Attorney General
LR/RO:cyh
cc: Jim Metzger, Chairman
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