Can an Arkansas government agency voluntarily release records that fall within a Freedom of Information Act exemption, even when no one has requested them?

Plain-English summary

Representative David Whitaker asked whether the Arkansas FOIA exemptions created by Acts 186 and 1102 of 2015 also stripped agencies of any discretion to voluntarily disclose the now-exempt categories of records. The background to the question was that some cities had historically published tax-collection information about specific hotels and restaurants and had pursued collection efforts publicly in court. After Act 1102, that hotel/restaurant tax information was newly exempt from FOIA. After Act 186, utility customer records were too. Could the city continue to publish or share that information voluntarily?

The AG said no. Arkansas FOIA exemptions are mandatory, not permissive. The AG pointed to three textual signals in the statute, any one of which would have supported the same conclusion:

• § 25-19-105(a)(1) requires disclosure "[e]xcept as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise." The exemptions are framed as carve-outs from a mandatory disclosure rule, not as default rules subject to agency discretion.
• § 25-19-105(b) declares "the specific intent of this section that the following shall not be deemed to be made open to the public ...." That language treats exempt records as not-public, not as records the agency may choose to make public.
• § 25-19-105(f)(2) says "[a]ny reasonably segregable portion of a record shall be provided after deletion of the exempt information." That assumes the exempt portion gets redacted; the statute does not contemplate the agency choosing to release it.

The opinion built on prior AG opinions reaching the same conclusion (2010-140 and earlier) and on the leading Arkansas FOIA treatise (Watkins & Peltz, 5th ed., 2009).

The AG then addressed the city's practical concern: how would tax collection work if the underlying records were exempt? The opinion drew a key distinction. FOIA governs disclosure to "the public." It is largely silent on access by officials acting in their official capacity. The AG cited prior opinions concluding that city attorneys may access exempt personnel records to represent the city (96-386) and that prosecutors may use subpoena power to obtain otherwise-exempt records (91-323). The treatise observed that "some officials may be able to obtain access to exempt records by virtue of statutory authority, or subpoena power, or otherwise in the course of their official duties."

The AG extended that principle one step further. Private parties acting as agents of a city or county, including private auditors and collection agents, can sometimes access exempt records because they stand in the shoes of the public entity. The "functional equivalent" doctrine the Arkansas Supreme Court had developed in cases like Waterworks v. Kristen Investment Property, Swaney v. Tilford, and City of Fayetteville v. Edmark supplied the framework. The AG had previously opined in 2008-071 that a private audit firm could access exempt information, but emphasized that the private entity was bound by FOIA exemptions on the back end.

So a city pursuing collection efforts after Acts 186 and 1102 could still get to the underlying records to do its job, but could not publish that information to the world the way it had before. As to whether court filings counted as public disclosure, the AG was uncertain and suggested local counsel.

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, codified at Ark. Code Ann. § 25-19-101 et seq., set up a default of public disclosure with specific exemptions. The two acts at issue both added new categories of exempt records.

Act 1102 of 2015 exempted certain hotel and restaurant tax information from public disclosure. The motivation was understandable: tax records can reveal sensitive business detail (revenue figures, customer counts, financial difficulties) that competitors and creditors could exploit. But the change was disruptive in cities that had long published delinquent-tax lists and pursued collection cases as public matters.

Act 186 of 2015 created an exemption for certain information in records of "public water systems" and "municipally owned utility systems," including customers' personal information. Section 2 of Act 186 amended Ark. Code Ann. § 25-19-103(4) and (7) to define those system types. The motivation was privacy: utility billing records can reveal occupancy patterns, financial status, and other personal information.

The AG's reading that FOIA exemptions are mandatory was not a new position. Watkins and Peltz's treatise (5th ed., 2009) had stated it explicitly at page 112. The AG had said the same thing repeatedly in earlier opinions (2009-161, 96-386, 91-374, and 2010-140).

The "official access notwithstanding FOIA" doctrine reflects the structure of FOIA itself. The statute regulates disclosure "to the public" or "to any citizen." It does not by its terms regulate inter-agency or intra-agency access, official access to records by officials acting within their authority, or access compelled by court process. So a city attorney handling collection litigation can use exempt records in the course of that work; a prosecutor with subpoena power can compel exempt records; and an audit firm contracted to perform a city's audit function can access exempt records as the functional equivalent of the city. None of these, however, can then publish the records.

The functional-equivalent doctrine matters. In City of Fayetteville v. Edmark, Swaney v. Tilford, and Waterworks v. Kristen Investment Property, the Arkansas Supreme Court treated certain private contractors performing public functions as effectively the same entity as the public body they served. That logic let the AG say that a private collection agent for a city stood in the city's shoes for purposes of exempt-records access, while still being bound by FOIA's nondisclosure rules.

Common questions

Could a city publish a delinquent-taxpayer list after Act 1102?
Not for the hotel/restaurant tax records covered by the new exemption. The AG read the FOIA exemption as prohibiting voluntary release, not just compelled release.

Could the city still sue to collect the taxes?
Yes. The AG distinguished between disclosure to the public and access by officials performing their duties. A city pursuing collection in court was acting in its official capacity. Whether the court filings themselves operated as public disclosure was a question the AG declined to resolve, suggesting local counsel.

Could law enforcement still get utility records under Act 186?
The AG indicated that some officials, by statute, subpoena, or in the course of official duties, can access records that the general public cannot. Law enforcement was a likely example, though the specifics depend on the statute being used.

What about a private auditor hired by the city?
The AG cited Opinion 2008-071 for the proposition that a private audit firm performing the city's audit function could access exempt records, but was bound by FOIA's nondisclosure rules on the back end. The functional-equivalent doctrine applied.

Why are FOIA exemptions mandatory if the public is the only one allegedly affected?
Three reasons in the statute itself. The opening clause (§ 25-19-105(a)(1)) requires disclosure except as exempted. The intent provision (§ 25-19-105(b)) declares exempt records "shall not be deemed to be made open to the public." And the segregability clause (§ 25-19-105(f)(2)) requires deletion of exempt portions before release. None of these read like agency-discretion provisions; all read like rules.

Does this mean the agency can never share the exempt data?
No. The mandatory-disclosure rule applies to disclosure to the public. Officials with statutory access rights, agencies sharing information with each other for proper purposes, courts ordering production, and similar non-public flows are governed by other rules, not by FOIA's disclosure command.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-056
June 24, 2015

The Honorable David Whitaker
State Representative
717 North Lewis Avenue
Fayetteville, AR 72701-1611

Dear Representative Whitaker:

You have requested my opinion on the following question concerning two recent legislative enactments that add certain exceptions to the disclosure requirements of the Arkansas Freedom of Information Act ("FOIA"):

Along with creating Freedom of Information Act exemptions, do [Acts 2015, Nos. 186 and 1102] deny the ability to voluntarily disclose certain information?

RESPONSE

Exemptions under the FOIA are mandatory. That is, if a record is exempt under the FOIA, the agency holding the record may not disclose it even if it wishes to. Three sections of the FOIA's text (whether considered individually or jointly) establish this mandate: First, Ark. Code Ann. § 25-19-105(a)(1) ("Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas ...."); Second, Ark. Code Ann. § 25-19-105(b) ("It is the specific intent of this section that the following shall not be deemed to be made open to the public ...."); and third, Ark. Code Ann. § 25-19-105(f)(2) ("Any reasonably segregable portion of a record shall be provided after deletion of the exempt information.") (emphasis added). See also Op. Att'y Gen. 2010-140.

Accordingly, the custodian does not have discretion to make available to the public those records that fall within an exemption.

In response to your question, therefore, the FOIA prohibits the custodian of records from voluntarily disclosing to the public those records that are exempted by Acts 186 and 1102 of 2015. Act 1102 exempts certain hotel and restaurant tax information from public disclosure under the FOIA, and Act 186 creates an exemption for certain information contained in records of "public water systems" and "municipally owned utility systems," including customers' "personal information." For the definitions of "public water systems" and "municipally owned utility systems," see section 2 of Act 186, amending Ark. Code Ann. § 25-19-103(4) and (7).

Some additional discussion of this prohibition is warranted, however, in light of the background information in your letter requesting my opinion. You report that "a particular city has for years publicly disclosed [tax information of] specific hotels and restaurant as well as collection efforts for past due ... taxes." You also refer to "collection cases against non-paying entities . . . conducted publicly in court." You further note that while your constituents "applaud the exemption of water customers' records to protect citizens' privacy," it has been brought to your attention that there are "legitimate law enforcement and other governmental needs for this information."

These statements seem to reflect a concern that the exemptions under Act 1102 of 2015 will affect efforts to collect past-due hotel and restaurant taxes. Governmental access to utility systems' records also appears to be a matter of concern.

These statements prompt me to note that law enforcement and other government officials may not always be subject to the same limitations as the public in accessing records. The FOIA is concerned with the disclosure of records to the "public":

Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all 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.

It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....

The FOIA therefore forecloses the public from accessing exempt records. The act is silent, however, on the question of who may access records by virtue of an official position. One recognized commentary on the FOIA has observed in this regard that "some officials may be able to obtain access to exempt records by virtue of statutory authority, or subpoena power, or otherwise in the course of their official duties." See John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 94-95 (Arkansas Law Press, 5th ed., 2009) (citing several Attorney General opinions, including Op. Att'y Gen. 96-386 (opining that a city attorney, in the exercise of his power and duty to represent the city, could access municipal employee personnel records that are exempt from release to the public), and 91-323 (noting that a prosecuting attorney, through the use of a subpoena, could compel records that are otherwise exempt under the FOIA)).

I cannot speculate as to all the circumstances in which a public official might be entitled to receive information that is otherwise exempt from public inspection under Acts 186 and 1102 of 2015. With regard, however, to "collection efforts" as referenced in your letter, I can state that it seems likely that some officials will require access to exempt information in order to pursue collections. It may also be necessary and appropriate in certain circumstances for some exempt information to be released to those undertaking collection efforts on behalf of government officials. Those who are engaged in collections as agents of a city or county would in effect stand in the shoes of city or county officials, and would likely have access to records and information that are unavailable to the general public. In other similar instances, the Arkansas Supreme Court has found that entities contracting with a public entity to provide services are in effect the "functional equivalent" of that public entity. See Waterworks v. Kristen Invest. Prop., 72 Ark. App. 37, 32 S.W.3d 60 (2000); Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995); City of Fayetteville v. Edmark, 304 Ark. 480, 830 S.W.2d 275 (1990).

As for concerns about publicly disclosing efforts to collect past-due hotel and restaurant taxes, it bears noting that those who access exempt information when pursuing collections as agents of a county or a city will be bound by the FOIA's nondisclosure requirements. See Op. Att'y Gen. 2008-071 (opining that a private audit firm had access to exempt information when engaged in an undertaking that would otherwise fall upon a city's administrator, but emphasizing that the private entity was bound by FOIA exemptions).

Regarding cases conducted in court, however, it is not immediately apparent to me that pursuing collections in court is tantamount to opening records to the public. While I am therefore uncertain whether the concerns mentioned in this regard are legitimate concerns under the FOIA, the county or city should consult local counsel for specific advice in connection with collection efforts.

Deputy Attorney General Elisabeth A. Walker prepared this opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh