Are Arkansas child maltreatment investigation records and the related probable cause reports exempt from disclosure under the Freedom of Information Act?

Plain-English summary

State Senator Uvalde Lindsey asked the Arkansas AG about how child maltreatment records flow through Washington County's law enforcement system. The narrative from police reports in child maltreatment cases (which identifies both victim and defendant) gets copied essentially identically into the probable cause reports that prosecutors file in the circuit clerk's office. The question: does the FOIA exemption in Ark. Code Ann. § 12-18-104 reach all of those records, including the records held by local sheriffs and police (who are not named in the statute) and the probable cause reports filed in the clerk's office?

AG Leslie Rutledge concluded yes on both counts:

• Q1 (sweeping FOIA exemption): § 12-18-104 prohibits the release of the entire record of a child maltreatment investigation conducted under the Child Maltreatment Act. This includes data created, collected, or compiled by local law enforcement, because sheriffs' offices and police departments are "other entit[ies] authorized under [the Act] to perform investigations." The statute does not need to name them by name.
• Q2 (probable cause reports): Yes, to the extent the probable cause report includes the child maltreatment investigation narrative or any portion of it, that portion is exempt from FOIA release under the same § 12-18-104 prohibition.

The opinion's broader point: § 12-18-104 functions as a near-total seal on child maltreatment records, and the FOIA's "catch-all" exemption in § 25-19-105(a)(1)(A) (for laws "specifically enacted" to exempt records) imports the seal directly into the FOIA framework. Unlawful disclosure of such data is a Class A misdemeanor under § 12-18-205.

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.

The Child Maltreatment Act and the surrounding investigative statutes have been amended multiple times since 2016, including changes to who can conduct investigations and what data flows are protected. Anyone facing a current FOIA request involving child maltreatment data should verify the current text of § 12-18-104 and related statutes.

Background and statutory framework

The Child Maltreatment Act

Ark. Code Ann. § 12-18-101 et seq. (the "Act") governs how Arkansas investigates and responds to child maltreatment. The Department of Human Services (DHS) and the Department of Arkansas State Police (ASP) have primary investigative roles, but local law enforcement (sheriffs and police) are also authorized to conduct child maltreatment investigations through referrals from the Child Abuse Hotline (§ 12-8-502(c)(2)) and as part of a coordinated multidisciplinary team approach (§ 12-18-106). All such investigations must be "operated and conducted in accordance with" the Act (§ 12-8-505).

The two layers of § 12-18-104

Section 12-18-104 identifies two sets of exempt data:

Layer 1 (§ 12-18-104(a)): Data "created, collected, or compiled by or on behalf of" DHS, ASP, or "other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families." This data "shall not be subject to disclosure under the Freedom of Information Act."

Layer 2 (§ 12-18-104(b)): Data "released under this chapter to law enforcement, a prosecuting attorney, or a court by" DHS and ASP. These records are "confidential and shall be sealed and not re-disclosed without a protective order."

Both layers are protected from FOIA disclosure, but Layer 1 (data collected by an authorized investigator) is the most directly relevant to records held by a sheriff's office that conducted a child maltreatment investigation.

Why local law enforcement is covered even though not named

Section 12-18-104(a) uses the catchall phrase "other entity authorized under this chapter to perform investigations." Local law enforcement agencies are unambiguously authorized to conduct child maltreatment investigations under the Act, both through the Child Abuse Hotline referral process (§ 12-8-502(c)(2)) and the multidisciplinary team mechanism (§ 12-18-106). The Act also explicitly contemplates that investigations may be "conducted by the [DHS] and the [ASP], or local law enforcement" (§ 12-18-616(a)(1)). So although § 12-18-104 does not list sheriffs and police by name, they are clearly captured by the "other entity authorized" language.

Why probable cause reports inherit the exemption

A probable cause report becomes a hybrid document when it copies the narrative from a child maltreatment investigation. The AG's reasoning: the protected data does not lose its exemption simply by being transferred into a different document. § 12-18-104(a) protects "any data, records, reports, or documents that are created, collected, or compiled by . . . [any] other entity authorized under this chapter." If the probable cause report incorporates that exempt data, the same exemption attaches to those portions of the probable cause report.

The opinion's framing implies a custodian who must redact rather than refuse outright: the probable cause report may also contain non-protected information that can be released after the child maltreatment portions are redacted.

Criminal penalty for unlawful disclosure

§ 12-18-205 makes "unlawful disclosure of data or information under this chapter" a Class A misdemeanor. A person commits the offense if they "knowingly disclose[] data or information to a person to whom disclosure is not permitted by this chapter." This is a strong enforcement mechanism that backs up the FOIA exemption with criminal liability.

Common questions

Q: Can I get a copy of a child maltreatment investigation report through FOIA? A: Generally no. Under this opinion, the entire record is exempt from FOIA disclosure under § 12-18-104. Unlawful disclosure is a Class A misdemeanor.

Q: Does it matter whether DHS, the State Police, or a county sheriff did the investigation? A: No. The exemption covers any entity authorized to perform child maltreatment investigations under the Child Maltreatment Act, including local law enforcement.

Q: What about the probable cause report the prosecutor filed in court? A: Portions that include the child maltreatment investigation narrative are exempt and must be redacted. Other portions of the probable cause report (those not derived from the child maltreatment investigation) may still be open under FOIA.

Q: How is the data still useful to law enforcement, prosecutors, and courts? A: § 12-18-104(b) and the surrounding statutes (§§ 12-18-503, 12-18-504, 12-18-620, 12-18-710) provide for direct sharing of data with law enforcement, prosecutors, and courts as part of the investigative and judicial process. That sharing is confidential and sealed; it is not FOIA-public release.

Q: What happens if a custodian wrongly releases child maltreatment data? A: Class A misdemeanor under § 12-18-205, plus potential civil exposure. Custodians who receive a FOIA request touching on child maltreatment should consult counsel before responding.

Citations and references

Statutes:

• Ark. Code Ann. § 12-18-101 et seq. (Repl. 2016), Child Maltreatment Act
• Ark. Code Ann. § 12-18-104 (Repl. 2016), exemption from FOIA disclosure
• Ark. Code Ann. § 12-18-205, criminal penalty for unlawful disclosure
• Ark. Code Ann. § 12-18-503, § 12-18-504, notification of reports to law enforcement and prosecutors
• Ark. Code Ann. § 12-18-616 (Repl. 2016), timing of investigative determinations
• Ark. Code Ann. § 12-18-620, pending-investigation information
• Ark. Code Ann. § 12-18-710, completed-investigation information
• Ark. Code Ann. § 12-8-502 (Repl. 2016), Child Abuse Hotline reporting to local law enforcement
• Ark. Code Ann. § 12-8-505 (Repl. 2016), investigations conducted under the Act
• Ark. Code Ann. § 25-19-105(a)(1)(A), FOIA "catch-all" exemption for laws specifically enacted to exempt records

Source

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

Original opinion text

Opinion No. 2016-068
August 26, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Uvalde Lindsey
State Senator
2257 East Gentle Oaks Lane
Fayetteville, AR 72703-6142
Dear Senator Lindsey:

This is in response to your request for my opinion on the following questions concerning records in a child maltreatment case:

1) Does Ark. Code Ann. § 12-18-104 prohibit the release of the entire record in a child maltreatment case under the [Arkansas Freedom of Information Act] ["FOIA"]? Is this true of all agencies involved, even those not enumerated in Ark. Code Ann. § 12-18-104, such as county sheriffs' offices and local police departments?

2) In Washington County, the narrative from the police reports, identifying both victim and defendant, are placed (essentially identically) into the probable cause report that is filed by the prosecuting attorney in the circuit clerk's office. If the answer to question #1 is yes, does Ark. Code Ann. § 12-18-104 then also prohibit the release of the filed probable cause reports in the circuit clerk's office?

RESPONSE

Local law enforcement agencies are authorized to conduct child maltreatment investigations in accordance with the Child Maltreatment Act (Ark. Code Ann. § 12-18-101 et seq.). I take it your first question relates to the record of such a child maltreatment investigation. In my opinion, the answer to each part of your first question is "yes" as to such record. It is my opinion that the answer to your second question is also "yes," to the extent the probable cause reports include the record[s] of child maltreatment investigations.

DISCUSSION

Question 1: Does Ark. Code Ann. § 12-18-104 prohibit the release of the entire record in a child maltreatment case under the [Arkansas Freedom of Information Act] ["FOIA"]? Is this true of all agencies involved, even those not enumerated in Ark. Code Ann. § 12-18-104, such as county sheriffs' offices and local police departments?

The FOIA includes a so-called "catch-all" exemption for laws "specifically enacted" to exempt records from public disclosure. The statute cited in your question, Ark. Code Ann. § 12-18-104, plainly qualifies as such a law. It exempts child maltreatment investigation "data, records, reports, or documents":

(a) Any data, records, reports, or documents that are created, collected, or compiled by or on behalf of the Department of Human Services, the Department of Arkansas State Police, or other entity authorized under this chapter to perform investigations or provide services to children, individuals, or families shall not be subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.

(b) Any data, records, reports, or documents released under this chapter to law enforcement, a prosecuting attorney, or a court by the Department of Human Services and the Department of Arkansas State Police are confidential and shall be sealed and not re-disclosed without a protective order to ensure the items of evidence for which there is a reasonable expectation of privacy are not distributed to a person or institution without a legitimate interest in the evidence, provided that nothing in this chapter is deemed to abrogate the right of discovery in a criminal case under the Arkansas Rules of Criminal Procedure or the law.

This statute identifies two sets of exempt data or information (which I will simply refer to as "data"): 1) data "created, collected, or compiled by or on behalf of the Department of Human Services ['DHS'], the Department of Arkansas State Police
['ASP'], or other entity authorized under this chapter to perform investigations or provide services . . ." and 2) data "released under this chapter to law enforcement, a prosecuting attorney, or a court by [DHS] and the [ASP]." (Emphases added).

The emphasized language is particularly relevant to your question concerning the record in a child maltreatment case. Local law enforcement agencies (including sheriffs' offices and local police departments) are authorized under the Child Maltreatment Act ("the Act") to conduct child maltreatment investigations. Thus, while the statute you have cited (section 12-18-104) does not specifically reference local law enforcement agencies, it is clear that sheriffs' offices and police departments are included as "other entit[ies] authorized under [the Act] to perform investigations . . . ." These investigations must be "operated and conducted in accordance with the [Act]." This requirement clearly extends to section 12-18-104's nondisclosure mandate, excerpted above.

In response to your question, therefore, section 12-18-104 prohibits the release of the entire record of a child maltreatment investigation conducted in accordance with the Child Maltreatment Act. This includes data created, collected, or compiled by local law enforcement involved in the investigation.

Question 2: In Washington County, the narrative from the police reports, identifying both victim and defendant, are placed (essentially identically) into the probable cause report that is filed by the prosecuting attorney in the circuit clerk's office. If the answer to question #1 is yes, does Ark. Code Ann. § 12-18-104 then also prohibit the release of the filed probable cause reports in the circuit clerk's office?

I gather from your first question that the "narrative" mentioned in your second question constitutes the record of the child maltreatment investigation, or at least some portion thereof. With that understanding of the question, the answer is "yes," in my opinion. The probable cause report will be exempt from disclosure pursuant to section 12-18-104 to the extent it includes this narrative, which constitutes the record of the child maltreatment investigation, or some portion thereof. This follows from section 12-18-104's clear prohibition against the disclosure of "[a]ny data, records, reports, or documents that are created, collected, or compiled by . . . [any] other entity authorized under this chapter to perform investigations . . . ."

Sincerely,

LESLIE RUTLEDGE
Attorney General