Do Arkansas private schools have to follow open-records and open-meetings laws if they accept LEARNS Act voucher money?
Plain-English summary
State Senator Clarke Tucker asked whether private schools that take Education Freedom Account (EFA) money under the 2023 LEARNS Act become subject to the Arkansas Freedom of Information Act, and if so, how broadly.
Attorney General Tim Griffin answered no. Arkansas FOIA reaches a private entity only if both of these are true:
- The entity is supported by or expends public funds.
- The entity's activities are "intertwined" with the government, meaning it is functioning as the government's "functional equivalent."
Private schools that accept EFA funds satisfy the first prong, because EFA money is a direct flow of state funds from the Arkansas Department of Education to participating schools. But the second prong fails. Operating a private school is not a traditional government function. Free public schools are. The state does not control a private school's budget, hiring, leadership, or curriculum (apart from a handful of EFA-program eligibility requirements). Private schools were formed independently of the state, often as religious or independent nonprofits, and continue to charge tuition and operate as they always have.
Because the second prong is missing, EFA-participating private schools are not subject to FOIA. Their meetings are not public meetings, their records are not public records, and they have no obligation to designate an FOIA custodian.
What this means for you
If you run a private school in Arkansas considering or already accepting EFA funds
Based on this opinion, taking EFA money does not in itself open your school's books, board meetings, or personnel files to FOIA requests. You are not obligated to designate a records custodian, post meeting notices, or respond to public-records demands the way a public school district must.
Two cautions. First, the analysis is fact-intensive. If the legislature later expands state oversight (auditing your books, approving your hires, controlling your curriculum), the "intertwined" prong could flip. Second, the AG noted that public records cannot be insulated by simply handing them off to a private entity. If a public school district transfers a record to your school to circumvent FOIA, that record stays subject to FOIA in your possession.
If you are an Arkansas public school district administrator
EFA-participating schools are not your competitors under FOIA's lens. The AG declined to recharacterize them as "functional equivalents of the government" simply because they receive state funding. Your district remains subject to FOIA on EFA-related records (allocation, communications with ADE, internal deliberations) but the receiving private school is not.
If you are a parent, voter, or journalist trying to track EFA dollars
You cannot FOIA the receiving private school. You can FOIA the Arkansas Department of Education for state-side records: which schools received funds, how much, eligibility decisions, and ADE communications. Public-side records remain available; the spending side at the recipient school is not.
If you are a public-records requester or a school-choice advocate
The opinion gives you a clear citation. The two-prong test is settled, and the AG synthesized 30+ years of cases and prior opinions into a structured framework: (1) delegated functional equivalent (private entity stepped into the public agency's shoes), and (2) significantly controlled functional equivalent (five-factor balancing test). Be ready to argue both if you want to bring a borderline private entity under FOIA.
If you are a state legislator considering changes
If transparency over EFA dollars is a policy priority, the legislative options are visible from this opinion. The state could (a) require participating schools to be subject to FOIA as a condition of receiving funds, (b) impose audit and reporting requirements that would tip the second prong, or (c) make EFA-related records held by ADE more granular. The opinion does not foreclose any of those moves; it just says the current statutes do not have that effect.
Common questions
Q: My child's private school takes EFA money. Can I see their board meeting minutes under FOIA?
A: No. Under this opinion, the school is not subject to Arkansas FOIA simply because it receives EFA funds. You can ask the school directly, but they have no legal obligation to share.
Q: What about the percentage of students using EFA at the school? Does that change the answer?
A: No, not under the current law. The AG noted that the share of public funding can be a factor in the second prong's significant-control test, but the lack of state control over hiring, budget, leadership, and operations means the prong fails regardless.
Q: Can I file a FOIA request with the Arkansas Department of Education to see EFA spending?
A: Yes. The ADE is a public agency subject to FOIA. Records ADE holds about EFA allocations, eligibility, payments to specific schools, and program correspondence are all public records (subject to standard exemptions for student information under FERPA, etc.).
Q: Are public meetings of a private school's board public meetings under FOIA if they take EFA funds?
A: No. Same logic. The school is not a public entity, and accepting EFA funds does not convert its board into a public body.
Q: What if a public school district hands records to a private EFA school to avoid FOIA?
A: That does not work. Under Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass'n, public records that have been "handed off" to a private entity to circumvent FOIA stay subject to FOIA, even if the private entity itself is not.
Q: Could a court rule differently?
A: Possibly. AG opinions are persuasive but not binding. A court applying the same two-prong test could weigh the factors differently, especially if the EFA program later includes more state oversight. The structure of the test, though, is well-established Arkansas Supreme Court doctrine.
Background and statutory framework
Arkansas FOIA generally applies only to public entities. The Arkansas Supreme Court and the AG have long recognized that a private entity can also fall under FOIA, but only when it functions as the government's "functional equivalent."
The leading cases shape a two-step test:
Step 1 - Public funding. The entity must receive a "direct" flow of public funds. Sebastian County Chapter of American Red Cross v. Weatherford, 311 Ark. 656 (1993), made clear that indirect benefits like tax breaks or government leases do not count.
Step 2 - Intertwined with government. This is where the AG concentrated his analysis. He synthesized the case law into two recognized routes:
Delegated functional equivalent (Edmark). Where a public entity contracts with a private one to perform "the same task" the public agency would otherwise perform itself. The AG read City of Fayetteville v. Edmark, 304 Ark. 179 (1990), and Swaney v. Tilford, 320 Ark. 652 (1995), as the foundation for this route. Examples include private companies running prisons, fire-protection contracts, or a city attorney function. Private schools educating tuition-paying students are not stepping into a role the state would otherwise fill, because the state runs public schools, not paid private ones.
Significantly controlled functional equivalent. Five factors from a line of AG opinions and Troutt Bros. line of cases:
1. Is the activity a traditional government function?
2. Does the government control management, operations, and budget?
3. How much public funding compared to other revenue?
4. Are leadership and staff appointed by government?
5. Was the entity created by the government?
For private schools accepting EFA funds, factor 1 fails (private schools are not traditional government functions, especially religious schools that the state cannot run). Factor 2 fails (no state control over budget, hiring, or operations beyond program-eligibility minimums). Factor 4 fails (no state appointment of school leadership). Factor 5 fails (private schools formed independently). Factor 3 (public funding share) varies school to school and the AG declined to weigh it.
The result: even if EFA dollars satisfy step 1, step 2 is not met, and FOIA does not reach the school.
Citations and references
Statutes:
- A.C.A. § 25-19-103 et seq. (Arkansas FOIA)
- A.C.A. §§ 6-18-2501 to -2510 (Arkansas Children's Educational Freedom Account Program)
- A.C.A. § 6-18-2503(8) (definition of participating school)
- A.C.A. § 6-18-2507(a) (requirements for participating schools)
Cases:
- City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (Ark. 1990) (delegated functional-equivalent test)
- Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (Ark. 1995) (functional equivalent for statutory audit)
- Sebastian County Chapter of American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (Ark. 1993) (direct public funding requirement)
- N. Cent. Ass'n of Colls. & Sch. v. Troutt Bros., 261 Ark. 378, 548 S.W.2d 825 (Ark. 1977) (significant control factors)
- Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass'n, 371 Ark. 411, 266 S.W.3d 689 (Ark. 2007) (handoff cannot avoid FOIA)
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (FOIA broadly construed in favor of disclosure)
Source
Original opinion text
Opinion No. 2023-101
August 26, 2024
The Honorable Clarke Tucker
State Senator
Post Office Box 7268
Little Rock, Arkansas 72217
Dear Senator Tucker:
I am writing in response to your request for my opinion about (1) whether private schools are subject to the Arkansas Freedom of Information Act (FOIA) if they choose to accept Education Freedom Account (EFA) funds under Act 237 of 2023—the LEARNS Act—and (2) if so, the extent the FOIA applies to those schools.
RESPONSE
To be subject to the FOIA, a private school must (1) receive public funds and (2) have its activities intertwined with those of the government. As discussed below, in my opinion, private schools receiving EFA funds meet the first element but not the second. Therefore, they are not subject to the FOIA.
DISCUSSION
The FOIA applies if (1) the entity is subject to the FOIA; (2) the requested document is a "public record" or the meeting is a "public meeting"; and (3) the public record or public meeting is not "exempted by the [FOIA] or other statutes." Arkansas courts "liberally interpret[] the FOIA" and "broadly construe [it] in favor of disclosure."
1. Entity subject to the FOIA. The threshold question is whether a private school is subject to the FOIA. Generally, the FOIA applies only to public entities, like public schools, but sometimes it applies to private entities. This means that records held by a private entity can be "public records" and that discussions had by a private entity can be "public meetings." But private entities are subject to the FOIA only if (1) they are "supported wholly or partially by public funds or expending public funds" and (2) their activities are "intertwined" with those of the government.
1.1. Public Funding. Although a private entity must be supported by or expend "public funds," that phrase is undefined in the FOIA. But the Arkansas Supreme Court has defined it as "[m]oneys belonging to the government, or any department of it, in hands of public officials." The financial support to the private entity must be a "direct" flow of funds. Indirect "government benefits or subsidies" do not make a private entity subject to the FOIA.
Here, there is direct public funding: EFA funds are state funds going directly to private schools. But simply receiving public funds will not subject a private entity to the FOIA.
1.2. Intertwined with government. To be subject to the FOIA, a private school must also engage in activities that are "intertwined" with those of the government. This is a fact-intensive, totality-of-the-circumstances analysis. When analyzing this step, authorities have used various language and factors. For example, this office has interchangeably used "functional equivalent" of government; in "close alignment" with the government; in a "symbiotic relationship" with the government; and engaging in "traditional[]" government activities. Notably, the Arkansas Supreme Court does not even use the word "intertwined" in its opinions concerning private entities and the FOIA. Instead, it has used the "functional equivalent" language.
Because the analysis varies from situation to situation, the Arkansas Supreme Court and this office review multiple factors to determine if a private entity is subject to the FOIA. Generally, each of those factors is aimed at determining the degree of control the government exercises over the private entity itself or the activity the private entity is engaged in. In other words, the North Star of applying the FOIA to private entities is determining if the government is "conduct[ing] its affairs through private entities" such that "those entities are for all practical purposes the government itself."
This opinion synthesizes the caselaw and Attorney General opinions into the two tests: (1) the delegated "functional equivalent" and (2) the significantly controlled "functional equivalent."
1.2.1. Delegated "functional equivalent." The Arkansas Supreme Court has held that a public entity cannot avoid the FOIA by delegating its "regular duties" to a private entity "specially retained to perform the same task." This type of delegation automatically makes the private entity "the functional equivalent of the regular [public employee]." Thus, this test applies when the government merely replaces itself with a private entity. This will most often occur when a private entity performs an activity for the government (1) that the government had a statutory duty to perform or (2) that the government did perform or would have performed itself but for contracting with the private entity.
Private schools preexisted the EFA program and will presumably continue to operate as they have, charging for educational services with almost no State oversight—except for a few provisions that apply to private schools that choose to participate in the EFA program. Public schools will likewise continue as they have—remaining free of cost to students and under State control. Thus, the legislature has not delegated its public-education duties, so private schools, in my opinion, are not the delegated functional equivalent of the government.
1.2.2. Significantly controlled "functional equivalent." Even if a private entity is not a delegated functional equivalent for the government, it may be a functional equivalent if the government significantly controls the private entity. To make this determination, courts weigh multiple factors to determine whether the government significantly controls the private entity: (1) whether the activity is a traditional government function; (2) the extent of government control over the private entity's management, operations, and budget; (3) the degree of public funding compared to the private entity's other sources of revenue; (4) whether the private entity's leadership and employees are or are appointed by government actors; and (5) whether the private entity was formed independently of the government. If the factors on balance indicate that the entity in question is the "functional equivalent" of the government—or "for all practical purposes the government itself"—then the private entity will be subject to the FOIA.
- Traditional government functions. If a private entity performs a traditional government function, it is more likely to be found to be significantly controlled by the government. Activities that have been found to satisfy this factor include providing services for fire protection, routine and emergency law enforcement, utilities, and economic development.
- Government control over management, operations, and budget. If the private entity's budget, "management, operation and activities" are subject to review and approval by the government, the private entity is more likely to be significantly controlled by the government for FOIA purposes.
- Public funding compared to other sources of revenue. The more public funding the private entity receives compared to its other sources of revenue, the more this factor weighs in favor of finding significant control.
- Leadership or employees are appointed by public officials. Significant control more likely exists when a private entity's executive leadership or staff are government employees, when they are appointed and removed by government employees, and when they are headquartered in publicly owned buildings.
- Formation independent of the government. When a private entity is created by a public body to perform public functions, the private entity is more likely to be significantly controlled by the government.
Considering these factors, courts will likely find that the State does not exert significant control over private schools. First, government has traditionally operated free public schools—not paid private schools. The EFA program does not change that. Moreover, private schools often educate in ways that public schools do not and cannot, such as providing religious education. Second, the State does not control private schools. In fact, I have found no authority that the State exercises over private schools, except for limited oversight of schools participating in the EFA program; the State does not review private schools' management, budget, or operations, nor it does appoint private-school leadership or employees. Third, the degree of public funding compared to other sources of revenue will vary from private school to private school based on multiple considerations, including tuition cost, percent of students participating in the EFA program, and private donations. Because of the wide variability, I am unable to consider this factor in my analysis. Fourth, private schools are often private nonprofit corporations, formed by private individuals, and their creation is not mandated by statute.
In sum, because private schools are not intertwined with government activities merely because they choose to participate in the EFA program, their meetings and records are not subject to the FOIA.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General