Can a school board hold private executive sessions to discuss school safety, security, or emergency plans under Arkansas FOIA?

Plain-English summary

State Senator Mathew Pitsch asked whether school boards can hold private (executive-session) meetings to discuss matters within Act 541 of 2017, codified at Ark. Code Ann. § 6-15-1304. Act 541 makes confidential certain "records or other information" about school safety: emergency plans, school-safety plans, procedures, risk assessments, security personnel rosters, and related materials. Pitsch read the phrase "records or other information" broadly enough to imply that the General Assembly intended the underlying meetings to be private too.

AG Leslie Rutledge said no. The opinion's reasoning has three steps:

1. The FOIA's open-meetings rule is the default. Ark. Code Ann. § 25-19-106(a) declares that "all meetings, formal or informal, special or regular," of school district governing bodies "shall be public meetings." Exceptions exist (employment-related personnel matters, licensing-board exam preparation, certain water/utility security matters), but the default is openness.

2. Act 541 covers records, not meetings. The statute reads "records or other information" but its disclosure clause says only that those records are "confidential and not subject to disclosure under the Freedom of Information Act." That language reaches the open-records portion of the FOIA, not the open-meetings portion. The phrase "other information" cannot be stretched to authorize private meetings.

3. The "specifically provided by law" rule is strict. The Arkansas Supreme Court in Laman v. McCord, 245 Ark. 401 (1968) held that exceptions to the open-meetings law must be "specific," meaning "explicitly," "definitely," "in so many words." And § 25-19-110(a) reinforces this by requiring any new FOIA exemption to "state that the record or meeting is exempt from the [FOIA]." Act 541 has no such statement for meetings. Without explicit language exempting meetings, no implicit meeting-exemption can be inferred.

So school boards must hold their meetings on safety, security, emergency plans, and related Act 541 topics in public. They can keep the underlying records confidential under § 6-15-1304, but the deliberations themselves are open under § 25-19-106.

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

What does Act 541 of 2017 actually protect?
The statute makes confidential records or information that, if disclosed, could be detrimental to public safety, including emergency plans, school-safety plans, procedures, risk assessments, studies, measures, or systems. It also protects information about the number of licensed security officers, school resource officers, or other security personnel, and personal information about those individuals.

If the records are confidential, why must the meeting be open? Because the FOIA distinguishes records (open-records part) from meetings (open-meetings part). Act 541 only addresses records. The opinion notes that under Ark. Code Ann. § 25-19-110, any new exemption must "state that the record or meeting is exempt from" the FOIA. Act 541 said only "records or other information," not meetings. So the meeting half of the FOIA still applies in full.

Can a board enter executive session for any reason? Only for the reasons listed in § 25-19-106(c) or for reasons specifically provided in another statute. The exceptions in (c) cover certain employment matters, exam preparation by licensing boards, the General Assembly's Child Maltreatment Investigations Oversight Committee, and matters relating to public-water-system or municipally-owned-utility security. Schools-safety meetings under Act 541 are not among the exceptions.

What about the discussion happening informally outside a noticed meeting? The FOIA's open-meetings provision reaches "all meetings, formal or informal, special or regular." A board cannot evade the open-meetings rule by characterizing a quorum's discussion as "informal." If a quorum is present and they are discussing public business, it is a public meeting under Arkansas law.

Can the board describe security plans in a public meeting without revealing protected details? The opinion did not directly address this, but the statutes are not in tension. A board can hold a public meeting and abstain from quoting or distributing the confidential records themselves; the deliberations are open, but the underlying documents may stay closed. Practical implementation is for the board's counsel.

Background and statutory framework

Act 541 of 2017 was a school-safety bill enacted in the wake of national concern about school security. It carved out a specific class of records (security-and-emergency-plan documents and security-personnel rosters) and made them confidential. The text expressly references the FOIA's open-records side: the records are "not subject to disclosure under the Freedom of Information Act of 1967, 25-19-101 et seq."

The FOIA's structural separation between records and meetings, combined with Laman v. McCord's "specifically provided" rule, is the reason Act 541 cannot do double duty. The legislature could have written an exemption for meetings (some statutes do), but Act 541 did not.

The opinion's holding aligns with prior AG opinions emphasizing that exceptions to open-meetings rules are construed narrowly and must be express. Pitsch's question was essentially whether implication is enough; the answer is no.

Citations

Statutes:

• Ark. Code Ann. § 6-15-1304 (Repl. 2018) (Act 541 of 2017; school-safety record confidentiality)
• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-106(a) (open-meetings default)
• Ark. Code Ann. § 25-19-106(c) (exceptions to open meetings)
• Ark. Code Ann. § 25-19-110(a) (Repl. 2014) (new exemptions must say so explicitly)

Case:

• Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) ("specifically" means explicitly, in so many words)

Source

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

Original opinion text

Opinion No. 2020-044
December 2, 2020
STATE OF ARKANSAS
THE ATTOl~NEY G ENERAL
LESLIE R UTLEDGE
The Honorable Mathew Pitsch
State Senator
11215 Vista Ridge Court
Fort Smith, AR 72916
Dear Senator Pi ts ch:
This is in response to your request for an opinion concerning Act 541 of2017, which is codified at Ark. Code Ann. § 6-15-1304 (Rep!. 2018) and provides as follows: The following records or other information related to a public school district or public school that operates a prekindergarten program or serves any students in any grade in kindergarten through grade twelve (K-12) is confidential and not subject to disclosure under the Freedom of Information Act of 1967, 25-19-101 et seq.: ( 1) Records or other information that upon disclosure could reasonably be expected to be detrimental to the public safety, including without limitation records or other information concerning emergency or security plans, school safety plans, procedures, risk assessments, studies, measures, or systems; and (2) Records or other information relating to the number of licensed security officers, school resource officers, or other security personnel, as well as any personal information about those individuals. You state that the "records or other infonnation" (emphasis added) language "suggests that the General Assembly intended for the Act to have a broader reach than simply excluding documents from inspection under the AFOIA (Arkansas 323 C ENTER STR EET. SUITE 200 •LITTLE ROCK, ARKANSAS 72201 T ELEPHONE (50 I) 682-2007 • FAX (50 I) 682-8084 INTERNET WEBSITE . http://www.ag.state.ar.us/ The Honorable Mathew Pitsch State Senator Opinion No. 2020-044 Page 2 Freedom of Information Act]." You state, more specifically, that "the language employed suggests that board members must have the latitude to meet and discuss school safety outside of public view." You then ask: Can you confirm that meetings, either formal or informal, or school districts and school boards related to matters which fall within the scope of the Act are exempt from the public meeting requirements or the AFOIA, Ark. Code Ann. § 25-19-106? RESPONSE I take your question to be asking if public school boards may, in keeping with the Arkansas Freedom of Information Act (FOIA), 1 hold private meetings outside of public hearing (often called "executive sessions") to discuss the emergency or security issues addressed in Ark. Code Ann. § 6-15-1304. The answer is "no." Section 25-19-106 of the FOIA establishes the general rule that "all meetings, formal or informal, special or regular, of ... governing bodies of all ... school districts ... shall be public meetings."2 There are some limited exceptions to this open-meetings requirement. Subsection 25-19-106( c) lays out several exceptions. 3 Additionally, other statutes outside of the FOIA may "specifically'' provide for executive sessions and thus qualify as exceptions under the FO IA' s so called ··catch- all" provision that incorporates exemptions "specifically provided by law."4 Section 6-15-1304 does not specifically provide for executive sessions to discuss the matters addressed therein. By its plain language, the exemption for "records or other information" is limited to the open-records portion of the FOIA. This language cannot be stretched to authorize private meetings to discuss whatever the words "other information" are intended to encompass. This is particularly true in 1 Ark. Code Ann. § 25-19-10 I - 111 (Rep!. 2014 and Supp. 2019). 2 Ark. Code Ann. § 25-19-106(a) (Supp. 2019). 3 The exceptions are for the consideration of ce11ain employment-related matters, the preparation of examinations and answers by licensing boards or commissions, the General Assembly's Child Maltreatment Investigations Oversight Committee, and matters relating to the public water system security or the security of municipally owned utility systems. Id. at§ 25-19-106(c)(l), (5)-(7). 4 Id. at § 25-19-106(a) The Honorable Mathew Pitsch State Senator Opinion No. 2020-044 Page 3 light of the Arkansas Supreme Court's admonition that exceptions to the open- meeting requirement will not be inferred but must be explicit: The legislative mandate cannot be misunderstood: 'Except as otherwise specifically (our italics) provided by law, all meetings ... of the governing bodies of all municipalities . . . shall be public meetings.' The key word is 'specifically,' meaning 'explicitly,' 'definitely,' 'in so many words. '5 The FOIA also states that any new exemption to the open-records or open-meetings requirement of the FOIA "shall state that the record or meeting is exempt from the
[FOIA]."6 Section 6-15-1304 plainly includes no such statement with respect to meetings. Thus, in response to your particular question, I cannot agree that meetings related to matters falling within the scope of section 6-15-1304 are exempt from the FOIA's open-meetings requirement. Sincerely,
.c;C~;.~c~- L //~--p
LESLIE RUTLEDGE
Attorney General
5 Laman v. McCord, 245 Ark. 401, 406, 432 S.W.2d 753, 756 (1968). 6 Ark. Code Ann.§ 25-19-1 lO(a) (Rep!. 2014).