Are personal direct messages on a state-issued phone public records under FOIA?
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This page answers the general question as of 2020. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Maximillan R. Sprinkle, representing the subject of a FOIA request, asked the AG to review a custodian's decision to release direct messages from a former state employee's state-issued BlackBerry. The subject argued (1) the messages were not "public records" at all, and alternatively (2) if they were, the personnel-records exemption would shield them.
The AG declined the request. The reason: under Ark. Code Ann. § 25-19-105(c)(3)(B), the AG's review is limited to whether the custodian's exemption decision is consistent with FOIA. That review presupposes the records are already "public records" under the definition in § 25-19-103(7)(A). Whether something is a public record in the first place is a fact-dependent threshold question that the statute does not authorize the AG to decide.
The AG pointed Mr. Sprinkle toward two Arkansas Supreme Court decisions for guidance on the public-record threshold (the Pulaski County cases). Those cases hold that a record's public status presumes from its being held by a public office or employee within the scope of employment, but that presumption is rebuttable on a fact-by-fact review of whether the record reflects the performance of official functions.
The opinion is short but useful as a marker: when the dispute is about whether something is public at all (rather than which exemption applies), the right forum is a court, not an AG opinion request.
Currency note
This opinion was issued in 2020. 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.
Common questions
Q: What does FOIA define as a "public record"?
A: Ark. Code Ann. § 25-19-103(7)(A) defines public records as "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions ... carried out by a public official or employee."
Q: Does using a state-issued device automatically make a communication a public record?
A: There is a presumption. Records "maintained in public offices or by public employees within the scope of their employment" are presumed public. But the presumption can be rebutted with evidence that the records do not reflect the performance of official functions. The first Pulaski County case in 2007 said exactly that.
Q: Why is this not the AG's job?
A: Because § 25-19-105(c)(3)(B) gives the AG a narrow review authority: was the custodian's decision to apply (or not apply) an exemption consistent with FOIA? The threshold "is this even a public record?" question requires document review and fact-finding that go beyond exemption analysis.
Q: What about the personnel-records exemption argument?
A: The AG could not get to it. The exemption is what § 25-19-105(c)(3)(B) lets the AG review, but only after assuming the records are public. Here, the central fight was at the threshold step, so the exemption analysis was moot for the AG's purposes.
Q: Where would this dispute go next?
A: To a court. FOIA disputes can be litigated in circuit court under Ark. Code Ann. § 25-19-107, which is the right forum for fact-specific public-record-status determinations.
Background and statutory framework
The AG's FOIA review authority is procedurally narrow. Ark. Code Ann. § 25-19-105(c)(3)(A) and (B) let three categories of people (the custodian, the requester, or the subject of certain employee-related records) ask the AG whether the custodian's release decision is consistent with FOIA. The AG's earlier opinions (Op. Att'y Gen. 2017-136, 2013-002, 2012-001, 2008-095) had repeatedly held that the review provision presumes the records are public records and asks only whether an exemption applies.
The two Pulaski County decisions in 2007 spell out the substantive law that a court would use. The first (370 Ark. 435, 260 S.W.3d 718) lays out the rebuttable presumption: if a record is not in fact "a record of the performance or lack of performance of official functions," it is not a public record under FOIA, even if it is held by a public employee. The second (371 Ark. 217, 264 S.W.3d 465) elaborates further on the analysis. Both decisions confirm that public-record status is a fact question that turns on the content of the document and the surrounding circumstances.
Citations
- Ark. Code Ann. § 25-19-105(c)(3)(B) (AG review of custodian decisions)
- Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
- Pulaski Cty. v. Ark. Democrat Gazette Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007)
Source
Original opinion text
Opinion No. 2020-002
January 8, 2020
Maximillan R. Sprinkle, Esq.
Sprinkle Law Firm
300 S. Spring Street, Suite 604
Little Rock, AR 72201
Dear Mr. Sprinkle:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B) (Supp. 2017). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion from this office stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.
Your correspondence indicates that "a newspaper reporter seeks the release of private conversations had over a direct message application on [a former state employee's] state-issued blackberry." The subject of the records objects to the custodian's proposed release of the documents. You ask whether the custodian's decision to release the records is consistent with the FOIA. You describe the records, which you refer to as "Messages," as "personal and private communications." You assert that the messages are not "public records" as defined by the FOIA. You alternatively assert that if I determine that the messages are "public records," they are nevertheless exempt from disclosure pursuant to the "personnel records" exemption.
RESPONSE
My duty under Ark. Code Ann. § 25-19-105(c)(3)(B) is to determine whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. In addition, my duty under Ark. Code Ann. § 25-19-105(c)(3)(A) and (B) is restricted to opining whether the custodian's decision as to an exemption to disclosure of records is consistent with the FOIA. As I have previously stated, this statutory mandate presupposes that the records in question are "public records" under the FOIA.
It appears that in this instance, the primary issue is not whether the messages are exempt from disclosure, but instead whether they meet the threshold requirement of being "public records" under the FOIA. Making a determination whether a record is a public record is outside of the scope of my statutory authority of review under Ark. Code Ann. § 25-19-105(c)(3)(B). You may wish to refer to the above-referenced cases for guidance, as they discuss the general issue at length. I must, however, respectfully decline your request for my opinion in this matter.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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