Can a public agency refuse to release records because of who is asking, or what the requester might do with the records?
Plain-English summary
Officer George Perez was the subject of a personnel file held by his former employer. Someone filed an Arkansas FOIA request for the file, and the custodian planned to release at least some of it. Perez objected, but his objection was not about the content of the records. He was suspicious of the requester's motives and worried about what the requester would do with the records.
Under A.C.A. § 25-19-105(c)(3)(B)(i), the subject of certain employee-related records can ask the AG whether the custodian's planned release is consistent with the FOIA. Perez did so. The AG's answer was short and direct: under Arkansas FOIA, the requester's intent and motives are generally irrelevant to the disclosure decision.
The AG cited three prior opinions stating the same rule: Ops. Att'y Gen. 2014-094, 2011-095, and 2006-118. The custodian's job is to apply the FOIA's rules to the records themselves, not to filter requesters by purpose, profession, or perceived motive. Subject-of-records objections that rest on requester identity are not a sufficient basis for withholding.
The opinion does not say anything about the records themselves. The AG did not see the records. The AG's "no" goes only to the requester-motives ground for objection. If Perez has objections based on the content of the records (privacy, employee-evaluation record protections, mixed-record balancing), those have to be raised separately and on different grounds.
What this means for you
FOIA custodians at any Arkansas public agency
When deciding whether to release records, do not ask the requester:
- Why do you want these?
- What will you do with them?
- Are you a journalist? A competitor? An attorney representing someone?
The FOIA does not condition disclosure on the requester's purpose. Apply the FOIA's content-based rules (public-record status, exceptions like personnel records, employee-evaluation records, attorney-client privilege, etc.) to the records themselves. A requester whose motives you find distasteful is still entitled to whatever the FOIA requires to be released.
That said, do gather administrative information from the requester to facilitate the response: contact information, the scope of the request, payment for copies. Those are operational details, not motive screening.
Public employees who are subjects of FOIA requests
Read this opinion carefully if you are tempted to argue "this requester shouldn't have my records." That argument fails under Arkansas law. The proper path is to argue about what the FOIA itself permits or prohibits in releasing the records:
- Are the records personnel records subject to Young v. Rice balancing?
- Are they employee-evaluation records subject to the four-part test?
- Have they been classified correctly?
- Are there mixed-record segments containing other persons' personal information that need redaction?
- Is there an applicable exemption (security records, ongoing law-enforcement investigation, attorney-client privilege)?
Bring those arguments to the custodian and, if the custodian rejects them, request an AG opinion under § 25-19-105(c)(3)(B)(i).
Public records requesters and journalists
Two practical implications:
- You do not have to disclose your purpose. Custodians cannot lawfully condition release on your motive.
- Custodians who pry into your motives are stepping outside the statute. You can push back politely but firmly. If a custodian denies a request based on stated suspicion of motive, that is a clear-cut FOIA violation that supports a Pulaski County v. Ark. Democrat-Gazette FOIA suit.
Internal-affairs staff and HR offices
Train custodians and HR managers that requester-purpose screening is not part of their job. The motive-blindness rule cuts both ways: a "good" requester (a journalist, a watchdog group) does not get extra access, and a "bad" requester (a hostile party, a competitor, a former spouse) does not get less. Records that must be released are released; records that must be withheld are withheld; the requester's identity does not change the math.
Police internal-affairs staff
If a former officer or subject of an investigation challenges a release on the ground that the requester is "an enemy," dismiss that ground politely. Focus the analysis on the records' content. The objection has the same legal status whether the requester is a reporter, a citizen, or someone with a personal grudge.
Family-court litigants and divorce attorneys
A common scenario: one spouse files a FOIA request to get the other spouse's public-employment records for use in a custody or support fight. The custodian cannot deny the records on that basis. The records are released according to FOIA's content rules, and the litigants then argue about their use in the family-court proceeding.
Public-employee unions and labor counsel
Counsel members on the actual scope of FOIA protections. Member objections framed around requester motives are doomed under Arkansas law. Refocus the legal strategy on the content-based exceptions: Young v. Rice, the four-part test, mixed-record balancing, and any specific statutory exemption.
Common questions
Are there any situations where requester identity matters?
A few narrow ones. Some Arkansas statutes outside the FOIA limit access to particular categories of records based on the requester's relationship to the subject (for example, certain medical or DCFS records). Within the FOIA itself, the general rule is requester-blind.
Can the custodian ask for the requester's name?
The custodian needs a way to deliver the records and process payment for copies, so basic contact information is appropriate. A purpose statement is not required and cannot be used to filter the request.
What if the requester is clearly going to use the records to harass the subject?
The FOIA does not authorize a harassment screen. If the records are public, they are released. Civil law (defamation, anti-stalking statutes, harassment torts) addresses misuse after the fact. The FOIA does not preempt those claims.
What if I think the requester will make money off the records?
Commercial use does not change FOIA disclosure obligations. Public records are public regardless of how the requester profits.
Does this rule apply to every kind of public record?
For purposes of the requester-motive question, yes. The rule applies to all FOIA disclosures. Specific statutory exemptions (which limit content, not requester) still apply.
Does the AG opinion bind a court?
No. AG opinions are persuasive. The motive-irrelevance rule is well-established in prior AG opinions and is consistent with general FOIA principles, but a court could refine it in specific factual contexts.
Can I anonymously request records?
Functionally, yes, in many cases. The custodian needs a way to contact you to deliver the records and collect payment for copies. Beyond that, a purpose statement is not required.
Background and statutory framework
A.C.A. § 25-19-105(c)(3)(B)(i): authorizes the custodian, the requester, or the subject of certain employee-related records to seek an AG opinion on whether the custodian's decision is consistent with the FOIA.
Prior AG opinions on requester motives:
- Op. Att'y Gen. 2014-094
- Op. Att'y Gen. 2011-095
- Op. Att'y Gen. 2006-118
These opinions establish that the requester's motives and intended use of records are generally irrelevant to the custodian's analysis. The custodian's task is to apply content-based exceptions to the records themselves.
The opinion does not address what the records contain. It addresses only the limited objection that the subject filed: that the requester's motives should weigh against release. The AG rejected that objection as insufficient on its face.
Citations
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request procedure)
- Ark. Att'y Gen. Op. 2014-094 (requester motives irrelevant)
- Ark. Att'y Gen. Op. 2011-095 (same)
- Ark. Att'y Gen. Op. 2006-118 (same)
Source
Original opinion text
Opinion No. 2023-018
April 4, 2023
Officer George Perez
C/o Howard Yates
110A South Chestnut Street
Morrilton, Arkansas 72110
Dear Officer Perez:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). The FOIA 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.
You say that your former employer (1) has received an FOIA request seeking your personnel file and (2) plans to disclose at least some records in response to the request. Since I have not seen any of the records the custodian intends to release, I cannot opine about the disclosure of any specific record. But your objection is not about the release of the records themselves. Rather, you object to the custodian's decision to release the records to the specific requester. You are suspicious of the requester's motives in seeking the records, and you are concerned about what the requester will ultimately do with the records.
RESPONSE
This office has consistently opined that, under the FOIA, the requester's intent and motives are generally irrelevant to the custodian when determining whether public records must be disclosed. Therefore, your objection is not a sufficient basis for the custodian to withhold your records from disclosure.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General