What can happen to an Arkansas city or city official who lies about or stalls a FOIA request?

Plain-English summary

Representative Ron McNair asked a tightly framed question: what penalties or sanctions can be brought against a city that provides misinformation in response to a FOIA request, or stalls past the response deadline. The AG declined to opine on any specific hypothetical, because whether a particular delay or misstatement is a FOIA violation is fact-intensive. But the AG laid out the full menu of remedies that a violation could trigger.

The remedies fall into two buckets. Inside the FOIA itself, there is a civil appeal track and a criminal track. The civil track lets any denied requester appeal "immediately" to circuit court (Pulaski County, the residence circuit, or the relevant judicial district depending on which entity is involved). Courts can order disclosure, hold defendants in contempt for non-compliance, and award fees and costs against most defendants (other than the State). The criminal track is § 25-19-104, which makes negligent FOIA violations a Class C misdemeanor (up to $500 fine, up to 30 days). The decision to charge sits with the prosecuting attorney.

Outside the FOIA, several judicial remedies are available depending on facts. Action taken at an improperly closed meeting can be invalidated, but Arkansas courts have built in safeguards: the body must be given a chance to cure by meeting publicly, only public-rights claims qualify, and the violation must be substantial and knowing. Declaratory judgment can confirm FOIA rights. Mandamus can compel disclosure or open meetings. And § 14-42-109 makes "nonfeasance in office" a removal-from-office offense for any elected city or town officer who willfully and knowingly fails to execute a law within their jurisdiction. A willful and knowing FOIA violation could fit. Nonfeasance proceedings are criminal in nature: indictment, circuit court hearing, and removal as the only penalty.

Currency note

This opinion was issued in 2018. 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.

How the FOIA's two internal remedies work

Civil appeal under § 25-19-107. Any denied requester can file an appeal "immediately" to circuit court. The venue rules turn on which entity denied the request: state-level entities go to the Pulaski County Circuit Court or the requester's home circuit; local entities (counties, municipalities, school districts) go to the relevant judicial district. The court can order disclosure or open access; refusing the order is contempt. Section 25-19-107(d) and (e)(1) allow fees and costs against most defendants, but a claim against the State or a state agency for fees has to go to the Arkansas State Claims Commission under § 25-19-107(e)(2).

Criminal liability under § 25-19-104. Negligent FOIA violations are a Class C misdemeanor: up to $500 fine (§ 5-4-201(b)(3)) and up to 30 days' imprisonment (§ 5-4-401(b)(3)). The "negligently" standard is the Criminal Code definition at § 5-2-202(4): the actor "should be aware of a substantial and unjustifiable risk" and the failure to perceive that risk is "a gross deviation from the standard of care that a reasonable person would observe." That is a gross-negligence standard, not ordinary negligence. The decision to charge is the prosecuting attorney's, who has broad discretion under Webb v. Harrison.

How meeting invalidation works

If a covered entity holds a closed meeting that should have been public under § 25-19-106(a), an Arkansas court can invalidate the action taken. But the Arkansas Supreme Court has built in a sequence of guardrails. The body must first have an opportunity to cure: it has to meet publicly to discuss the issues it had previously discussed privately (Rehab. Hosp. Servs. Corp.). Even after that, invalidation requires the plaintiff to be enforcing a public right (not a private grievance), and the violation must be substantial and knowingly made. The opinion cites Romine v. Dept. of Environmental Quality and Nat'l Park Med. Ctr. as later applications.

The practical implication is that meeting invalidation is real but narrow. The first step on discovering an improperly closed meeting is usually to demand a public re-do, not to immediately seek invalidation in court.

Other judicial remedies

Declaratory judgment. Recognized as a proper remedy to enforce FOIA rights in Arkansas Gazette Co. v. Pickens. There may be an exhaustion-of-administrative-remedies wrinkle (suggested by Nat'l Park Med. Ctr.).

Mandamus. Available to compel both meeting compliance (Davidson) and records disclosure (Boyd v. Keith). Mandamus is a sharp tool: the court orders the official to do the specific act required by law.

Nonfeasance under § 14-42-109. An elected city, town, or first/second-class-municipality officer who "willfully and knowingly fail[s], refuse[s], or neglect[s] to execute, or cause to be executed, any of the laws or ordinances within their jurisdiction" is guilty of nonfeasance. The procedure is criminal: a grand-jury indictment, circuit-court hearing, and the only sanction is removal from office. Citing Op. Att'y Gen. 2006-018, the AG read FOIA violations as potentially fitting the nonfeasance definition if the willful-and-knowing element is met. The standard is high: ordinary negligence in handling FOIA does not amount to nonfeasance, but a deliberate refusal to comply might.

Common questions

Is there a fixed FOIA response deadline in Arkansas? Yes. Under § 25-19-105, custodians generally have to act on a request "immediately" if the records are not in active use, and within three working days otherwise. The opinion does not enumerate the deadline rules; it focuses on the consequences of violations.

Does "misinformation" require intent?
Civil remedies do not, but the higher-level sanctions do. The Class C misdemeanor is gross-negligence (§ 5-2-202(4)). Nonfeasance requires willful and knowing violation. So a careless misstatement might support an attorney's-fees award after a successful FOIA appeal but would not, on its own, justify removal from office.

Who pays the attorney's fees?
A prevailing FOIA plaintiff can recover reasonable fees and costs from any defendant other than the State or a state agency (§ 25-19-107(d), (e)(1)). For state defendants, a fee award flows through the Arkansas State Claims Commission under § 25-19-107(e)(2).

Can a citizen prosecute the misdemeanor themselves? No. The Class C misdemeanor under § 25-19-104 is brought by the prosecuting attorney, who has broad charging discretion. Citizens can refer the matter and ask the prosecutor to file charges, but they do not have an independent right to prosecute.

What is the typical real-world remedy for a stalled or denied FOIA request? The civil appeal in circuit court is the workhorse. It produces an order to disclose, often quickly, and can carry fees. Nonfeasance and the misdemeanor are reserved for the worst conduct.

Background and statutory framework

The Arkansas FOIA at Ark. Code Ann. § 25-19-101 et seq. is a relatively muscular sunshine statute. It has both a records side (§ 25-19-105) and an open-meetings side (§ 25-19-106). The remedies stack the AG describes in this opinion is the toolkit for both. The nonfeasance statute at § 14-42-109 is older and has a broader scope (any "law or ordinance within their jurisdiction"), but the AG's reading lets it function as a backstop for elected-official FOIA misconduct.

Citations

• Ark. Code Ann. § 25-19-104 (Class C misdemeanor for negligent FOIA violations)
• Ark. Code Ann. § 25-19-106 (open meetings)
• Ark. Code Ann. § 25-19-107 (civil appeal, contempt, fees)
• Ark. Code Ann. § 5-2-202(4) (definition of "negligently")
• Ark. Code Ann. § 5-4-201(b)(3) (Class C fine cap)
• Ark. Code Ann. § 5-4-401(b)(3) (Class C imprisonment cap)
• Ark. Code Ann. § 14-42-109 (nonfeasance in office)
• Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977) (prosecutorial discretion)
• Rehab. Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, 285 Ark. 397, 687 S.W.2d 840 (1985) (cure-by-public-meeting before invalidation)
• Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (declaratory judgment proper)
• Boyd v. Keith, 330 Ark. 626, 954 S.W.2d 942 (1997) (mandamus for records)
• Arkansas State Police Comm. v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972) (mandamus for meetings)

Source

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

Original opinion text

Opinion No. 2017-108
January 17, 2018
The Honorable Ron McNair
State Representative
407 Cemetery Road
Alpena, AR 72611-2953
Dear Representative McNair:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
This is in response to your request for my opinion on the following questions concerning the Arkansas Freedom of Information Act ("FOIA"):

1. What are the potential penalties and/or sanctions for a city, town,
   or municipality that provides misinformation and/or fails to timely respond to a request under the FOIA?
2. What are the criminal penalties or sanctions, if any, relating to
   violations of the FOIA?
   RESPONSE
   Because both of your questions ask about potential consequences of violating the FOIA, I will address them together. The FOIA itself provides two different types of remedies for violation of its requirements. And certain other judicial remedies are potentially available. The question of whether a violation occurred in any given instance will be intensely factual. I therefore cannot specifically opine as to the consequences of providing "misinformation," as you put it, or of failing to timely respond to a FOIA request. I can, however, address the type of remedies that are generally available. 323 CENTER STREET, SU ITE 200 · LITTLE ROCK. ARKANSAS 72201 TELE PHON E (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV The Honorable Ron McNair State Representative Opinion No. 2017-108 Page 2 I. Remedies under the FOIA First and foremost, the FOIA itself provides both civil and criminal remedies. As for civil remedies, the statute provides for an appeal of a denial of FOIA rights to the appropriate circuit court: Any citizen denied the rights granted to him or her by this chapter may appeal immediately from the denial to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party, if the State of Arkansas or a department, agency, or institution of the state is involved, or to any of the circuit courts of the appropriate judicial districts when an agency of a county, municipality, township, or school district, or a private organization supported by or expending public funds, is involved. 1 Those refusing to comply with a court order in the context of an FOIA appeal are guilty of contempt.2 The court in an FOIA case can also levy fees and costs against a defendant (other than the State of Arkansas or any of its departments or agencies) in certain circumstances. 3 The FOIA also imposes a criminal penalty for negligent violations of the act: "Any person who negligently violates any of the provisions of this chapter shall be guilty of a Class C misdemeanor."4 A Class C misdemeanor is punishable by a fine of up to $500.005 and a sentence of up to thirty days.6 The legal definition of "negligently," for purposes of this penalty, is found in the Criminal Code: 1 AC.A.§ 25-19-107(a) (Repl. 2014). 2 Id. at§ 25-19-107(c). 3 Id. at §§ 25-19-107(d), (e)(l). A claim for fees and costs against the State or one of its depai1ments or agencies can be filed with the Arkansas State Claims Commission. Id. at § 25-19- 107( e )(2). 4 Ark. Code Ann.§ 25-19-104 (Repl. 2014). 5 Ark. Code Ann.§ 5-4-20l(b)(3) (Repl. 2014) 6 Ark. Code Ann.§ 5-4-401(b)(3) (Repl. 2013). The Honorable Ron McNair State Representative Opinion No. 2017-108 Page 3 (A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. (B) The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor.7 The decision whether to bring such criminal charges rests with the prosecuting attorney, who is invested with broad discretion in this regard. 8 II. Other potential remedies Another possible consequence, in connection with the FOIA's public-meetings section, is the invalidation of actions taken at an improperly conducted meeting. However, the Arkansas Supreme Court has required that the covered entity's governing body be given an opportunity to correct the violation.9 That is, the governing body must be allowed to meet publicly and discuss the issues that it had previously discussed privately.10 Additionally, the action will be invalidated only if a plaintiff seeks to enforce a public right, and if the violation was substantial and knowingly made. 11 7 Ark. Code Ann.§ 5-2-202(4) (Repl. 2013). 8 See generally Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977). 9 See Rehab. Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, 285 Ark. 397, 687 S.W.2d 840 (1985). Accord Romine v. Dept. of Environmental Quality, 342 Ark. 380, 40 S.WJd 731 (2000); Nat'! Park Med. Ctr., Inc. v. Arkansas Dept. of Human Services, 322 Ark. 595, 911 S.W.2d 250 (1995). 10 See Rehab. Hosp. Servs. Corp., 285 Ark. at 401, 687 S.W.2d at 843. 11 Id. The Honorable Ron McNair State Representative Opinion No. 2017-108 Page 4 Other additional remedies may be available through the courts, depending upon the particular circumstances. Declaratory judgments have been held a proper remedy to enforce FOIA rights.12 But there is some indication that a plaintiff would have to exhaust administrative remedies prior to using this avenue of relief.13 A writ of mandamus may also be an appropriate remedy.14 Finally, a "willful[] and knowing[]" violation of the FOIA could be grounds for a claim that an elected city official was guilty of the criminal offense of "nonfeasance in office": If the mayor, member of the city council, or any other elective officer of any city of the first class or second class or incorporated town in this state shall willfully and knowingly fail, refuse, or neglect to execute, or cause to be executed, any of the laws or ordinances within their jurisdiction, they shall be deemed guilty of nonfeasance in office.15 A finding of "nonfeasance" would result in removal from office.16 The procedure for obtaining a judgment of nonfeasance is criminal in nature. Upon indictment, the circuit court will hear the charges and, if it determines that the challenged conduct constitutes nonfeasance, will remove the defendant from office. Although the only penalty for conviction is removal from office, the requirement of obtaining an indictment distinguishes any such proceeding from a civil case. 17 In sum, the FOIA itself provides both civil and criminal remedies for any violation of its requirements. And there are other potential remedies available through the courts. However, I cannot specifically opine on your question regarding a (hypothetical) city that provides "misinformation" or that fails to timely respond to 12 See Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975). 13 See Nat'! Park Med. Center, supra note 9. 14 See generally Arkansas State Police Comm. v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972) (regarding meetings); Boydv. Keith, 330 Ark. 626, 954 S.W.2d 942 (1997) (regarding records). 15 Ark. Code Ann.§ 14-42-109(a)(l)(A) (Supp. 2017). 16 Id. at§ 14-42-109(A)(l)(B). 17 See Op. Att'y Gen. 2006-018 (and opinions cited therein). The Honorable Ron McNair State Representative Opinion No. 2017-108 Page 5 a FOIA request, as the question whether a violation occurred in any given instance will be intensely factual. Sincerely,
   ~~
   LESLIE RUTLED~
   Attorney General