Are emails sent by a justice of the peace or other elected county official public records under Arkansas FOIA, who is the custodian, and how long must they be kept?

Subject

Whether emails involving elected Arkansas officials are public records, who acts as their FOIA custodian, and whether county retention statutes require emails between quorum court members to be kept.

Plain-English summary

A prosecuting attorney asked four questions about emails to or from elected public officials, including justices of the peace. The Attorney General said emails exchanged between public officials generally are public records under Arkansas FOIA, but each email must be assessed on its own content. The statutory definition covers a kept writing, recording, or electronic record that documents the performance or lack of performance of an official function. A purely personal email does not meet that last requirement. Keeping an otherwise public email on a personal phone or away from the office does not remove its public-record status. A public record may still be subject to a specific disclosure exemption.

The Attorney General then addressed retention under A.C.A. §§ 13-4-302 to -308. FOIA governs disclosure rather than a general retention period. The cited county retention statutes list categories that must be kept, including some court, tax, financial, marriage, election, corporation, and recorder's records. For quorum courts, § 13-4-302(3) requires retention of a treasurer's monthly financial report for one year and certain records such as minutes and proceedings permanently. Emails between quorum court members need not be retained under those statutes unless they fit one of the listed categories. The opinion does not decide every possible retention duty for every elected official's email.

The FOIA custodian is the person with administrative control of the particular records. That person need not be the one physically keeping them. A county judge's general custody of county property is a different concept, so the judge may or may not be the FOIA custodian for a given set of emails. A recipient who is not the custodian must respond and identify the proper custodian if known or readily ascertainable.

What this means for you

If you are an elected county official

Expect emails about official work to be assessed as potential public records even if stored on a personal phone. Their content matters. A purely personal message does not become an official-function record simply because it is an email between officials. For retention, the opinion's answer concerns the listed county statutes and emails between quorum court members; check whether a particular email fits a listed category.

If you respond to FOIA requests

Review responsive emails individually for the statutory public-record elements and any specific exemption. Determine who has administrative control of the records. If a request reaches someone else, the opinion quotes the duty to identify the appropriate custodian when known or readily ascertainable.

If you request county emails

The opinion supports requesting emails between public officials about official functions. It does not guarantee that every email is releasable or that older quorum court messages still exist: the disclosure and retention questions are separate.

Common questions

Q: Are all emails between justices of the peace public records?
A: No. They generally can be, but the custodian must examine each email to see whether it is kept and records an official function. Purely personal emails fail that last part of the definition.

Q: Does using a personal phone make an official email private?
A: No. The opinion says keeping a public record on a personal phone or outside the office does not exempt it from FOIA release.

Q: Must a county keep every email between quorum court members?
A: Not under the county retention statutes examined. The opinion says those emails need not be kept under A.C.A. §§ 13-4-302 to -308 unless they fall within an expressly listed category.

Q: Is the county judge automatically the FOIA custodian?
A: No. The FOIA custodian is the person with administrative control of the particular records. Depending on the circumstances, that may or may not be the county judge.

Q: What if a FOIA request goes to the wrong person?
A: The opinion quotes A.C.A. § 25-19-105(a)(3)(C): a recipient without administrative control must respond and identify the proper custodian if known or readily ascertainable.

Background and statutory framework

A.C.A. § 25-19-103(15)(A) supplies the public-record definition used in the opinion. The opinion cites Pulaski Cnty. v. Arkansas Democrat-Gazette, Inc. for the rebuttable presumption that records held by a public entity or public employees within the scope of employment are public. A.C.A. §§ 13-4-302 to -308 govern the specific county retention categories discussed. For custody, A.C.A. § 25-19-103(2)(A) defines the FOIA custodian through administrative control; Fox v. Perroni explains that administrative responsibility matters more than who physically keeps a document. The opinion distinguishes that role from a county judge's general custody of county property.

Citations and references

• A.C.A. § 25-19-103(15)(A), opinion footnotes 1 and 3; § 25-19-103(2)(A), footnote 12.
• A.C.A. §§ 13-4-302 to -308 and § 13-4-302(3), discussed in Question 2.
• A.C.A. § 25-19-105(a)(3)(C), opinion footnote 14.
• Pulaski Cnty. v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), opinion footnotes 1–2.
• Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004), opinion footnotes 11 and 13.

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2025-129

February 23, 2026

Mr. Robert T. Rogers, II
Prosecuting Attorney
Nineteenth-East Judicial District
202 North Springfield
Post Office Box 536
Berryville, Arkansas 72616

Dear Mr. Rogers:

I am writing in response to your request for my opinion on public records and records retention law. Specifically, you ask four questions:

1. Are emails sent to or from elected public officials, including but not limited to, Justices of
  the Peace, public records under Arkansas law?

   Brief response: Emails exchanged between public officials—including justices of the
                   peace—generally constitute “public records.” But the custodian must
                   evaluate individual emails on a case-by-case basis to ensure each email
                   meets the definition of a public record.

2. If such emails are public records, are they required to be retained under A.C.A. § 13-4-302
  to § 13-4-308?

   Brief response: Unless emails between quorum court members fit under one of the express
                   categories listed in the records-retention statutes, they are not required to
                   be retained under A.C.A. §§ 13-4-302 to -308.

3. Which office or individual serves as the custodian for these records?

   Brief response: The “custodian” is the individual with administrative control of the
                   records, which, depending on the circumstances, may or may not be the
                   county judge.

4. What is the retention period for such emails between elected public officials?

                         BOB R. BROOKS JR. JUSTICE BUILDING
                             101 WEST CAPITOL AVENUE
                           LITTLE ROCK, ARKANSAS 72201

Mr. Robert T. Rogers, II
Prosecuting Attorney, Nineteenth-East Judicial District
Opinion No. 2025-129
Page 2

Brief response: Please see my response to Question 2.

DISCUSSION

Question 1: Are emails sent to or from elected public officials, including but not limited to, Justices of the Peace, public records under Arkansas law?

Under the Arkansas Freedom of Information Act (FOIA), records held by either a public entity or public employees “within the scope of their employment” are presumed to be public records,1 although that presumption is rebuttable.2 Whether a particular document is a public record depends on its content. A record qualifies as a “public record” if it meets each of the following elements:

• It is a writing, recording, or electronic information;

• It is kept; and

• It is “a record of the performance or lack of performance of official functions … carried out by a public official or employee.”3

While emails between public officials, like justices of the peace, generally constitute “public records” under the FOIA,4 the custodian must evaluate individual emails on a case-by-case basis to ensure each of the three elements is met. For example, purely personal emails are not “public records” subject to release under the FOIA because they do not meet the third requirement—that is, they do not reflect the “performance or lack of performance of official functions.”5 Additionally, the fact that a public employee keeps a public record, like an email, on a personal phone or outside his or her office does not exempt it from release under the FOIA.6

1
A.C.A. § 25-19-103(15)(A); Pulaski Cnty. v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 439, 260 S.W.3d 718, 721 (2007). 2 See Arkansas Democrat-Gazette, Inc., 370 Ark. at 440–41, 260 S.W.3d at 722 (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.’” (quoting Ark. Att’y Gen. Op. 2005-095)). 3 A.C.A. § 25-19-103(15)(A).
4
See Ark. Att’y Gen. Ops. 2000-096, 99-018, 97-115.
5
See Arkansas Democrat-Gazette, Inc., 370 Ark. at 444–46, 260 S.W.3d at 724–25; Ark. Att’y Gen. Ops. 97-145, 91-374. 6 Ark. Att’y Gen. Ops. 2000-220, 97-115.

Mr. Robert T. Rogers, II
Prosecuting Attorney, Nineteenth-East Judicial District
Opinion No. 2025-129
Page 3

When an email is a “public record” under the FOIA, it is open to public inspection and copying unless a specific exemption applies.7 Additionally, outside the FOIA, A.C.A. § 14-14-110(a) requires counties to make “available for inspection and copying” all records “by any person during normal office hours.”8

Question 2: If such emails are public records, are they required to be retained under A.C.A.
§ 13-4-302 to § 13-4-308?

Because the FOIA is a disclosure statute—not a records-retention statute—it does not require that “public records” be retained for any specific period.9 Instead, records-retention obligations for counties are found in A.C.A. §§ 13-4-302 to -308. These statutes require counties to retain certain court records, tax and assessment records, financial records, marriage records, voter registration and election records, corporation records, and recorder’s records.

For quorum court records specifically, A.C.A. § 13-4-302(3) requires the county to retain the county treasurer’s monthly financial report for one year and to retain certain other documents— such as quorum court minutes, records of proceedings, and codification of ordinances— permanently. Thus, unless emails between quorum court members fit under one of the express categories above, they are not required to be retained under A.C.A. §§ 13-4-302 to -308.

Question 3: Which office or individual serves as the custodian for these records?

Under the FOIA, an Arkansas citizen must direct his or her records requests to the “custodian of the records.”10 The FOIA does not require “that the custodian be the person who actually keeps the document, nor does it say that the custodian must be required to keep the document.”11

The “custodian” is defined as the person “having administrative control” of the records12—or someone who is “charged with the responsibility of managing the affairs and conduct” of the entity

7
See, e.g., Ark. Att’y Gen. Op. 2023-101 (noting that “[t]he FOIA applies if (1) the entity is subject to the FOIA; (2) the requested document is a ‘public record’ … and (3) the public record … is not ‘exempted by the [FOIA] or other statutes’”). 8 See Ark. Att’y Gen. Op. 2000-244. See also A.C.A. 14-14-110(b) (providing exemptions broader than those under the FOIA—for “[p]ersonal records, medical records, and other records which relate to matters in which the right to individual privacy exceeds the merits of public disclosure”). 9 Ark. Att’y Gen. Ops. 2009-014, 2000-220.
10
A.C.A. § 25-19-105(a).
11
Fox v. Perroni, 358 Ark. 251, 257, 188 S.W.3d 881, 885 (2004).
12
A.C.A. § 25-19-103(2)(A) (defining “custodian” under the FOIA).

Mr. Robert T. Rogers, II
Prosecuting Attorney, Nineteenth-East Judicial District
Opinion No. 2025-129
Page 4

subject to the FOIA.13 If an individual receives a FOIA request but is not the custodian or “lacks administrative control over any responsive records that may exist,” that person must still “respond and identify the appropriate custodian … if known or readily ascertainable.”14

Although county judges have general “custody” over all county property,15 that concept is distinct from the FOIA’s use of “custodian,” which is a term of art identifying the person with administrative control over particular public records and the corresponding duty to respond to FOIA requests. Accordingly, for emails of elected officials, the FOIA custodian is the individual with administrative control of those particular records, which, depending on the circumstances, may or may not be the county judge.

Question 4: What is the retention period for such emails between elected public officials?

As noted in my response to Question 2, Arkansas’s record-retention statutes do not require that emails between quorum court members be retained unless the emails fall within one of the specific categories of records listed in A.C.A. §§ 13-4-302 to -308.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

13
Perroni, 358 Ark. at 263–64, 188 S.W.3d at 889–90 (affirming the lower court’s findings that, under liberal interpretation of the FOIA, “administrative control” includes someone “who is charged with the responsibility to manage or execute the public affairs or conduct of their office, department[,] or agency” and “had both the power and responsibility” to provide a requested public record under the FOIA); see also Ark. Att’y Gen. Ops. 2013-147 (noting the definition of “administrative control” under the Perroni case), 2007-290, 2002-228. 14 A.C.A. § 25-19-105(a)(3)(C).
15
Ark. Const. amend. 55, § 3; A.C.A. § 14-14-1102(b)(3)(A).