Can the board of a consolidated waterworks system like Central Arkansas Water hold a closed executive session to discuss a security vulnerability assessment, and can third parties like police chiefs and Homeland Security consultants attend?

Plain-English summary

Senator David Johnson asked how the Arkansas FOIA's open-meetings rules applied to Central Arkansas Water (CAW), a body corporate and politic created under the Consolidated Waterworks Authorization Act. Could CAW's board meet behind closed doors to discuss a water-security vulnerability assessment? If so, could outside experts like the police chief, county sheriff, fire chief, Department of Homeland Security representatives, or private security consultants attend the closed session?

The AG split the question in two.

Yes, CAW could close the session. Act 186 of 2015 had just added a new executive-session exception in § 25-19-106(c)(6) authorizing "a public agency [to] meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security." Act 186 also defined "municipally owned utility system" to include consolidated waterworks systems under § 25-20-301 et seq., which captured CAW directly. So CAW had clear statutory authority to hold a closed session for security discussions.

No, outside experts could not attend. The phrase "a public agency may meet in executive session" said nothing about third parties. The AG read "public agency" as a collective noun referring to the agency itself, meaning the agency's officials and employees. CAW's board members and staff fit; the police chief, the county sheriff, the fire chief, DHS representatives, and private security consultants did not. Two independent reasons supported this reading.

First, the ordinary meaning of "a public agency" in this kind of statutory phrasing referred to the agency as an entity, with its constituent officials and employees. The phrasing was singular ("a public agency"), but it picked up everyone who was part of that agency.

Second, the Arkansas Supreme Court had repeatedly held that FOIA exceptions are narrowly construed (Laman v. McCord, McCambridge v. City of Little Rock, Ragland v. Yeargan). When in doubt about the scope of an exception, courts adopt the narrower reading. The narrower reading here was board-and-employees only. The broader reading (board, employees, plus anyone the board wants to consult) would have been a significant expansion of FOIA's tolerance for closed meetings, particularly because the new exception had only just been enacted.

That second answer left CAW with a practical question: if it wanted technical input from law enforcement or DHS on a vulnerability assessment, how could it get that input without violating FOIA? The AG did not address that question in this opinion. Options that flowed naturally from the analysis would include: receiving technical briefings and analysis through staff in open session before going into closed session; obtaining written reports from outside experts and reviewing them in closed session; or, in the cleanest case, requesting that the legislature broaden the exception. The AG declined to extend the new exception by interpretation.

The opinion noted that the executive-session exception is one of three exceptions to the FOIA's general open-meetings rule under § 25-19-106(c). Like all FOIA exceptions, it must be read narrowly.

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

Arkansas FOIA's open-meetings provisions establish a default rule that public-agency meetings are open to the public (§ 25-19-106(a)). Three exceptions allow closed sessions: personnel matters, security, and the new water/utility security exception added by Act 186 of 2015.

Act 186 of 2015 was a multi-section bill expanding FOIA's protection for utility security. Section 2 of Act 186 amended Ark. Code Ann. § 25-19-103(4) and (7) to define "public water system" and "municipally owned utility system." A "municipally owned utility system" was defined to "include without limitation a ... consolidated waterworks system under the Consolidated Waterworks Authorization Act, § 25-20-301 et seq." Section 4 of Act 186 added the new § 25-19-106(c)(6) executive-session exception.

The Consolidated Waterworks Authorization Act under which CAW was created authorized two or more municipalities or other public bodies to consolidate their water systems into a single body corporate and politic. The resulting entity (here, CAW) has its own board, employees, and operating authority. The 2015 opinion treated CAW as a public agency subject to FOIA throughout.

The narrow-construction principle for FOIA exemptions came from Laman v. McCord (1968), Arkansas's foundational FOIA case, which held that the act must be construed to favor disclosure. McCambridge v. City of Little Rock (1989) and Ragland v. Yeargan (1986) restated the principle in other contexts. The Watkins and Peltz treatise (5th ed., 2009) at page 10 collected the doctrine.

The AG's reading of "public agency" as a collective noun drew on Garner's Modern American Usage (3d ed. 2009) at page 906: "a noun that names a group of people ...; a noun that is grammatically singular but has a plural sense." That linguistic analysis combined with the narrow-construction principle yielded the board-and-employees-only result.

Common questions

Could CAW invite the police chief into an executive session to discuss water security?
No, under this opinion's reading. The police chief is not a member of CAW's board or staff, so the chief is outside "a public agency" as the AG read the phrase. CAW could brief the police chief in open session or share information with the chief outside any meeting, but the closed-session exception did not authorize the chief's presence.

What about a private security consultant CAW had retained?
Same answer. A private consultant is not an official or employee of CAW. The narrow reading of "public agency" excluded private contractors even if hired specifically for security work.

Did this opinion apply to other consolidated waterworks systems?
Yes. The Act 186 definition of "municipally owned utility system" reached "a consolidated waterworks system under the Consolidated Waterworks Authorization Act," which means any system created under that act could use the same security executive-session exception with the same limits the AG identified.

Could CAW go into open session, hear the consultant, then go into executive session?
The opinion does not address that sequence. Standard FOIA practice would allow open-session presentations followed by closed-session deliberations among only the agency's own officials and employees, provided the closed session itself complies with § 25-19-106(c)(6).

What if CAW wanted to discuss security in closed session with another public agency?
The opinion does not directly address joint executive sessions. The "public agency" language is singular, which suggests the exception was framed for one agency at a time. CAW would need to think carefully about whether multi-agency closed sessions could fit within the statute.

Was the AG saying the narrow reading is the only possible one?
The AG identified the narrow reading as both grammatically natural and judicially preferred under the narrow-construction principle. The AG did not say the broad reading was impossible, only that a court was likelier to adopt the narrow one.

Source

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

Original opinion text

Opinion No. 2015-024
May 19, 2015

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable David Johnson
State Senator
500 Woodlane Avenue
State Capitol, Room 320
Little Rock, Arkansas 72201

Dear Senator Johnson:

I am writing in response to your request for my opinion on how the open-meetings rules under the Arkansas Freedom of Information Act (FOIA) apply to Central Arkansas Water. You provide the following background for your request: "Central Arkansas Water ('CAW') is a body corporate and politic created under the Consolidated Waterworks Authorization Act, codified at Ark. Code Ann. § 25-20-301 et seq. As such, CAW is subject to the FOIA." You also note that one provision of the FOIA, section 25-19-106(c)(6), "provides that 'a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security ....' (emphasis added)."

With this background in mind, you ask three questions:

1. Can the Board of Commissioners of CAW meet in executive session with CAW staff to consider, evaluate, and discuss a vulnerability assessment clearly pertaining to public water system security?
2. If so, can third parties (such as the police chief, county sheriff, fire chief, representatives from the Department of Homeland Security, and other third-party security and vulnerability consultants) also attend the executive session to provide technical expertise in consideration, evaluation and discussion of the vulnerability assessment?
3. In other words, what is the definition of "public agency" as used in Ark. Code Ann. § 25-19-106(c)(6)?

RESPONSE

For the reasons explained below, it is clear (a) that CAW has authority to enter into an executive session for water security and (b) that CAW's Board and employees may jointly attend that executive session. Thus, the answer to your first question is "yes." But, in my opinion, the "third parties" referenced in your second question are not authorized to attend that executive session. Thus, the answer to your second question is "no." My responses to your first two questions should sufficiently resolve your third question.

DISCUSSION

The open-meetings provisions of the Arkansas Freedom of Information Act (FOIA) require that, as a general rule, members of the public have a right to attend public meetings. This general rule is subject to three exceptions. Under these exceptions (called "executive sessions"), the entity is authorized to hold its discussions behind closed doors. Your opinion request presents the two threshold questions for most executive sessions: Who can hold an executive session? and Who can attend the executive session?

Regarding that first question, the CAW can clearly hold an executive session related to water security. The FOIA provides that "a public agency may meet in executive session for the purpose of considering, evaluating, or discussing matters pertaining to public water system security or municipally owned utility system security." The emphasized phrase, which was just added to the FOIA in the 2015 legislative session, is defined to include consolidated waterworks systems. Because CAW is a consolidated waterworks system, it is authorized to hold an executive session for water security.

The next question is, "Who can attend that executive session?" The provision at issue states that "a public agency may meet in executive session" regarding water security. In my opinion, this means that all those who are officials or employees of the public agency (or municipally owned utility system) are authorized to attend. This would include CAW's Board and its employees, but not those third parties referenced in your second question. At least two independent reasons compel this conclusion. First, the term "public agency," as used in this context, can reasonably be interpreted as a collective noun, which refers to all those who are a constituent part of that agency. This would clearly include CAW's employees and Board, but it would exclude those persons referenced in your second question. Second, the Arkansas Supreme Court has held that all FOIA exceptions must be narrowly construed. Thus, when in doubt about an exception's scope, we are required to give it the narrowest reasonable interpretation. Here, the two options for attendees are (1) CAW's employees only or (2) CAW's employees together with anyone else whom CAW considers to have subject-matter expertise. Clearly, the former is the more narrow interpretation, which renders it the one most likely to be adopted by a court.

With the foregoing principles in mind, I now turn directly to your questions. As noted above, since the CAW can hold an executive session that consists of both CAW's Board and staff, the answer to your first question is "yes." Further, for the reasons given above, the term "public agency" cannot be read to include third parties who are not staff members of CAW. Thus, the answer to your second question is "no." The answer to these two questions should sufficiently resolve your third question.

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

Sincerely,

LESLIE RUTLEDGE
ATTORNEY GENERAL
LR/RO:cyh