Can an Arkansas employment background-check company use a FOIA request to get a person's district court records, or can the clerk refuse under Supreme Court Administrative Order 19?

Plain-English summary

Senator Jeremy Hutchinson explained that companies running employment background checks routinely sent FOIA requests to district court clerks asking for court records of prospective employees, one to fifteen names at a time. A growing number of clerks were refusing, saying the requests really amounted to "bulk distribution" or "compiled information" governed by Supreme Court Administrative Order 19 instead of the FOIA. He asked whether Order 19 applied at all, and if so, whether it gave the clerks a basis to say no.

AG Leslie Rutledge answered yes on the first question and "it depends" on the second. Order 19 is the dedicated court-records procedure for circuit, district, and city courts. Its general rule grants public access to court records, but that access is "subject to" Sections V through X of the order. The records of specific individuals fit Order 19's definition of "case record," so the order applies.

Section VI is the kicker. It treats any "information that is derived from the selection, aggregation or reformulation of information from more than one court record" as "compiled information." Whether a particular request amounts to compiled information depends on the records requested. If the compiled-information rules apply, the requester must complete a license agreement certifying a qualifying purpose and that identifying specific individuals is essential to it. The AG did not decide whether any background-check company could make those representations.

Whether a particular company can make the certification is a fact question the AG said should be resolved by the Arkansas Supreme Court Committee on Automation. The opinion says a requester may appeal the clerk's decision to that committee.

Currency note

This opinion was issued in 2016. 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

Order 19's place in the records access scheme

Order 19 was the Arkansas Supreme Court's framework for public access to court records. It treated the FOIA as a "gap-filler" only: "Except as otherwise provided by this order, access to court records shall be governed by the [FOIA]." Whenever Order 19 spoke to a question, Order 19 controlled. When it was silent, the FOIA took over.

The order's threshold definition of "court record" reached "any document, information, data, or other item created, collected, received, or maintained by a court, court agency or clerk of court in connection with a judicial proceeding" (§ III(A)(2)). That swept in the records of individual cases that background-check companies wanted.

The "compiled information" trigger

The order pulled records that crossed case boundaries into a separate track. Section III(A)(10) defined "compiled information" as information derived from "the selection, aggregation or reformulation of information from more than one court record." The AG did not decide whether a request listing several people met that definition. He said the result depends on the specific request.

Section VI then imposed three things on compiled-information requests:

1. The clerk could disclose only if the requester completed a license agreement.
2. The requester had to certify a qualifying purpose (scholarly, journalistic, political, governmental, research, evaluation, or statistical).
3. The requester had to certify that identifying specific individuals was essential to that purpose.

The opinion did not decide whether commercial employment background-check companies could make the required certification. It treated that as a fact question.

Appeal route

The opinion says a requester who disagrees with the clerk may appeal to the Supreme Court Committee on Automation. It does not say this appeal is exclusive or decide whether a court could hear another claim.

Common questions

Q: Were the clerks right to refuse these FOIA requests? A: No categorical answer. The AG said Order 19 applied, but whether it exempted the requested records depended on the specific request. Whether a background-check company could make the required representations was a fact question for the Committee on Automation.

Q: What kinds of background-check requests would qualify? A: The opinion does not classify particular background-check requests. For compiled information, the requester must certify a listed purpose and show that identifying specific people is essential to that purpose. The AG left application to particular companies unresolved.

Q: Was this a FOIA case or a court-records case? A: Functionally a court-records case. Order 19 carved out court records from the standard FOIA flow whenever Order 19 spoke. The FOIA still applied to anything Order 19 left uncovered.

Q: Did this opinion address other ways to get individual court records? A: No. The opinion addresses Order 19's application to the described requests and leaves disclosure of any particular request to the order's terms.

Citations and references

Court rules:

• Supreme Court Administrative Order 19, § I(A) (FOIA as gap-filler)
• Supreme Court Administrative Order 19, § III(A)(2) (definition of "case record")
• Supreme Court Administrative Order 19, § III(A)(4) (application to circuit, district, and city courts)
• Supreme Court Administrative Order 19, § III(A)(10) (definition of "compiled information")
• Supreme Court Administrative Order 19, § IV(A) (general public-access rule subject to §§ V-X)
• Supreme Court Administrative Order 19, § VI(B)(5) (license certification and appeal to Committee on Automation)

Source

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

Official summary

(Q1) Does Supreme Court Administrative Order 19 ("Order 19") apply to Freedom of Information Act ("FOIA") requests for the court records of specific individuals for the purpose of performing employment background checks? (Q2) If so, does Order 19 provide a legal basis for court clerks to reject such FOIA requests? RESPONSE: The answer to your first question is "yes" because the Order 19's definitions include the court records of specific individuals. Therefore, in response to your second question, Order 19 must be consulted to determine whether the requested records may be disclosed. Whether Order 19 does in fact exempt the records' disclosure will depend on the specific FOIA request at issue. As explained more fully in the opinion, a FOIA requester who disagrees with the district-court clerk's decision may appeal the clerk's decision to the Committee on Automation.

Original opinion text

Opinion No. 2015-121
April 14, 2016
STATE OF ARKAN SAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Jeremy Hutchinson
State Senator
201 East North Street
Benton, Arkansas 72015
Dear Senator Hutchinson:
You have asked for my opinion on the relationship between the Arkansas Freedom of Information Act (FOIA) and Supreme Court Administrative Order 19. You provide the following background for questions: Companies that provide background-check services for employers routinely make FOIA requests to district-court clerks for the court records of prospective employees of their clients. In making these requests, the background-check companies provide the court clerks with identifying information for between one and fifteen individual prospective employees and request the court records, if any, for those specific individuals. An increasing number of district-court clerks are rejecting FOIA requests for these court records stating that pursuant to Order 19 they are not required to provide the requested court records. The rejections are based on the belief of the court clerks that such requests are requests for "bulk distribution" or "compiled information" as defined in Section III of Order 19 and are therefore subject to Section VI of Order 19 and not the FOIA. With this background in mind, you ask:

1. Does Administrative Order 19 apply to FOIA requests for the court records
   of specific individuals for the purpose of performing employment background checks?
2. If so, does Administrative Order 19 provide a legal basis for court clerks to
   reject such FOIA requests?
   RESPONSE
   The answer to your first question is "yes" because the Order 19's definitions include the court records of specific individuals. Therefore, in response to your second question, Order 19 must be consulted to determine whether the requested records may be disclosed. Whether Order 19 does in fact exempt the records' disclosure will depend on the specific FOIA request at issue. As explained more fully below, a FOIA requester who disagrees with the district-court clerk's decision may appeal the clerk's decision to the Committee on Automation. DISCUSSION Order 19, which deals with how people can obtain court records, establishes a procedure that is independent of the FOIA. And the Order only uses the FOIA as a "gap-filler," stating: "Except as otherwise provided by this order, access to court records shall be governed by the [FOIA]." Under this framework, any answer to your questions requires answers to two threshold issues: (1) whether the records at issue here fall within Order 19's definitions; and (2) if so, whether Order 19 exempts them from disclosure upon request. The answer to that threshold question is "yes." Order 19, which applies to circuit, district, and city courts, establishes the general rule that "[p]ublic access shall be granted to court records," but that access is limited by Order 19's "sections V through X." For purposes of Order 19, the term "court record" includes, among other things, a "case record," which is any "document, information, data, or other item created, collected, received, or maintained by a court, court agency or clerk of court in connection with a judicial proceeding." Because the records at issue in your questions seem to fall within Order 19's key threshold definitions, the Order requires their disclosure "subject to the limitations of sections V through X." Section VI contains the "limitations" governing disclosure of "compiled information," which means "information that is derived from the selection, aggregation or reformulation of information from more than one court record." Section IV establishes a detailed and lengthy process governing requests for compiled information. Under that process the requesters are only entitled to the information if they complete a license agreement certifying (1) that the request is made for a "scholarly, journalistic, political, governmental, research, evaluation, or statistical purpose," and (2) that the "identification of specific individuals is essential to the purpose" of the request. Under Order 19, requesters who need information on specific individuals and who cannot make these representations are not entitled to compiled information. If a requester of individual information believes that the clerk is not complying with Order 19's requirements, that requester may appeal the clerk's decision to the Supreme Court Committee on Automation. The answer to your second question turns on whether the background-check companies are able to make the foregoing representations. This is a fact question that should be resolved by the Supreme Court Committee on Automation. LESLIE RUTLEDGE ATTORNEY GENERAL