Can an Arkansas city release the names of restaurants and hotels that haven't paid their advertising and promotion taxes?
Plain-English summary
Representative Maddox asked whether a city may release (in response to FOIA or by direct publication) the names of businesses that have not paid the advertising and promotion (A&P) taxes that fund city tourism programs and convention centers. The relevant FOIA exemption, § 25-19-105(b)(23)(A), shields "[i]nformation related to taxes collected by particular entities under" three statutory regimes: § 26-74-501 et seq., the Advertising and Promotion Commission Act (§ 26-75-601 et seq.), and the related § 26-75-701 et seq.
Then-Attorney General Leslie Rutledge concluded that this exemption is narrower than it first reads. Subsection (b)(23)(B) of the same statute carves out an exception: the exemption "does not apply to information or other records regarding the total taxes collected" under those provisions in the county or municipality as a whole. That qualification, the opinion explained, shows the legislature's intent: shield individual business tax-collection figures, not the broader question of whether a particular business is following the law. Failure to remit is a compliance fact, not a tax-collection figure, so the exemption does not reach it.
The opinion reinforced the result with the standard FOIA construction rule from Ark. Dep't of Fin. & Admin. v. Pharmacy Assocs., 333 Ark. 451, 456, 970 S.W.2d 217, 219 (1998): the FOIA is liberally construed in favor of disclosure; exemptions are narrowly construed.
The bottom line: a city's A&P commission, finance department, or city manager may publish or release the names of A&P-tax-delinquent businesses without running afoul of the FOIA. Whether to do so as a matter of policy is a separate question.
Currency note
This opinion was issued in 2021. 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 the § 25-19-105(b)(23) FOIA exemption actually protect?
It protects taxpayer-specific dollar figures, what restaurant X collected in A&P taxes, what hotel Y collected. The exemption traces back to the Arkansas Gross Receipts Act mechanics: tax reports show "the total tax due derived from all taxable sales," and that line-item business-by-business figure is treated as confidential to protect the business's revenue. The exemption does not extend to compliance status.
What's the difference between A&P taxes under §§ 26-75-601 and 26-75-701?
Section 26-75-601 et seq. is the Advertising and Promotion Commission Act, which authorizes A&P taxes for advertising, promotion, and tourism programs. Section 26-75-701 et seq. authorizes related hospitality taxes for convention centers and similar facilities. Both are reported and remitted through the Arkansas Gross Receipts Act framework (§ 26-52-101 et seq.).
Can a city publish a delinquent-taxpayer list as a collection tool?
The opinion says yes, the FOIA does not stand in the way. It does not analyze whether other state or constitutional law (notice requirements, due process for businesses with disputed assessments, defamation) might constrain how a list is compiled and used. A city contemplating a public-shaming program should think through those questions separately.
Does this rule apply to state-level taxes too?
No. The opinion was specifically about local A&P taxes under §§ 26-74-501, 26-75-601, and 26-75-701. State sales-tax confidentiality rules in the Arkansas Department of Finance and Administration's regime are governed by separate statutes and common-law confidentiality doctrines.
What about the dollar amount of the delinquency itself?
The opinion did not directly address that. The exemption shields amounts of taxes "collected." A delinquency is an amount not collected. By analogy and by the narrow-construction rule, that figure also probably falls outside the exemption, but the opinion did not so hold.
Background and statutory framework
A&P taxes are local-option taxes Arkansas cities use to fund tourism and convention infrastructure. The Advertising and Promotion Commission Act, § 26-75-601 et seq., is the most-used vehicle. A parallel regime at § 26-75-701 et seq. covers cities that adopted A&P taxes under earlier authority. Section 26-74-501 et seq. governs another local-option configuration. All three are administered through the Arkansas Gross Receipts Act framework at § 26-52-101 et seq., which sets up sales-tax-style reporting on "taxable sales" for the reporting period.
The FOIA confidentiality provision at § 25-19-105(b)(23) followed those statutes to protect business-by-business amounts but expressly carved out aggregate totals. The opinion's reading of subsection (b)(23)(B) as evidence of the legislature's intent fits the standard tools of statutory construction: text, structure, and the operative narrow-construction canon for FOIA exemptions.
Citations
Statutes:
- Ark. Code Ann. § 25-19-101 et seq. (FOIA)
- Ark. Code Ann. § 25-19-105(b)(23)(A) (Supp. 2019) (tax-collection exemption)
- Ark. Code Ann. § 25-19-105(b)(23)(B) (aggregate-totals carve-out)
- Ark. Code Ann. § 26-52-101 et seq. (Arkansas Gross Receipts Act)
- Ark. Code Ann. § 26-52-501(b) (Supp. 2019)
- Ark. Code Ann. § 26-74-501 et seq.
- Ark. Code Ann. § 26-74-503(b)(2) (Supp. 2019)
- Ark. Code Ann. § 26-75-601 et seq. (Advertising and Promotion Commission Act)
- Ark. Code Ann. § 26-75-603(b)(1) (Supp. 2019)
- Ark. Code Ann. § 26-75-701 et seq.
- Ark. Code Ann. § 26-75-704(b) (Supp. 2019)
Cases:
- Ark. Dep't of Fin. & Admin. v. Pharmacy Assocs., 333 Ark. 451, 970 S.W.2d 217 (1998)
Source
Original opinion text
Opinion No. 2020-047
February 3, 2021
The Honorable John Maddox
State Representative
520 Church Avenue
Mena, AR 71953-3210
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Dear Representative Maddox:
This is in response to your request for an opinion on the following questions concerning an exemption under the Arkansas Freedom of Information Act ("FOIA") related to certain taxes:
1. Is a city allowed to provide the names of businesses that have not remitted advertising and promotion taxes under Arkansas Code § 26-75-601 et seq. or § 26-75-701 et seq. in response to a request under the [FOIA]?
2. May a city publish the names of businesses that have not remitted advertising and promotion taxes under Arkansas Code § 26-75-601 et seq. or § 26-65-701 et seq. even if the publication is not related to a request under the [FOIA]?
3. Is information about a particular entity's failure to remit advertising and promotion taxes under Arkansas Code § 26-75-601 et seq. or § 26-75-701 et seq. confidential under Arkansas law? If so, are there any exceptions that would allow for disclosure of this information?
RESPONSE
The fact that a business failed to remit advertising and promotion taxes is not protected from disclosure under the FOIA. Accordingly, the answer to both Questions 1 and 2 is "yes," and the answer to the first part of Question 3 is "no," rendering the second part of that question moot.
DISCUSSION
Question 1: Is a city allowed to provide the names of businesses that have not remitted advertising and promotion taxes under Arkansas Code § 26-75-601 et seq. or § 26-75-701 et seq. in response to a request under the [FOIA]?
You ask whether the fact that an entity failed to pay taxes is shielded from public disclosure under the FOIA by a provision exempting "information related to taxes collected by [the business]." It is not.
As you correctly note, the FOIA exempts from disclosure "[i]nformation related to taxes collected by particular entities under § 26-74-501 et seq.; the Advertising and Promotion Commission Act, § 26-75-601 et seq.; and § 26-75-701 et seq." "[T]his exemption" from disclosure, however, "does not apply to information or other records regarding the total taxes collected under [those provisions]." And that qualification underscores that the exemption you cite is intended only to shield an individual business's tax-collection information, not to protect more abstract information about whether an entity has followed the law. Indeed, only that reading is consistent with the general rule that FOIA exemptions are narrowly construed.
In sum, the FOIA exemption does not shield the names of businesses that have not remitted the advertising and promotion taxes.
Question 2: May a city publish the names of businesses that have not remitted advertising and promotion taxes under Arkansas Code § 26-75-601 et seq. or § 26-65-701 et seq. even if the publication is not related to a request under the [FOIA]?
Because a business's failure to remit advertising and promotion taxes is not exempt from disclosure under the FOIA, the answer to this question is "yes."
Question 3: Is information about a particular entity's failure to remit advertising and promotion taxes under Arkansas Code § 26-75-601 et seq. or § 26-75-701 et seq. confidential under Arkansas law? If so, are there any exceptions that would allow for disclosure of this information?
The answer to the first part of this question is "no," based on the discussion above. The second part of this question is, therefore, moot.
Sincerely,
LESLIE RUTLEDGE
Attorney General