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 between justices of the peace and other elected county officials are public records under Arkansas FOIA, who holds custodian duties, and whether and how long the emails must be retained.
Plain-English summary
A prosecuting attorney asked the AG four questions about quorum court emails. The big picture: yes the emails are usually public records (so subject to FOIA), but no, Arkansas's records-retention statutes do not require counties to keep them for a particular period.
On the public-records question, the AG applied the standard three-part definition from A.C.A. § 25-19-103(15)(A). A document is a public record if it is (1) a writing or electronic record, (2) kept, and (3) "a record of the performance or lack of performance of official functions." Emails between justices of the peace about county business meet that test. Purely personal emails do not, even if they sit on the same county email account. The custodian has to look at each email's content and make the call individually. Storing a public record on a personal phone or outside the office does not strip it of public-record status (Ark. Att'y Gen. Op. 2000-220). Whether a public record is releasable is a separate question that depends on whether any FOIA exemption applies.
On retention: the AG drew a sharp line between disclosure law and retention law. FOIA is a disclosure statute, not a retention statute. Retention obligations sit in A.C.A. §§ 13-4-302 to -308, which apply to counties and list specific categories that must be kept (quorum court minutes, certain financial records, marriage records, voter registration and election records, corporation records, recorder's records). Member-to-member emails are not on that list. So unless the email contains content that fits one of those listed categories (e.g., it embeds a treasurer's monthly report or constitutes part of the official quorum court minutes), the county is not statutorily required to retain it.
On the custodian question, the AG separated two senses of "custody." The county judge holds general "custody" of all county property under Ark. Const. amend. 55, § 3 and A.C.A. § 14-14-1102(b)(3)(A). That is a property concept. The FOIA "custodian" is a different concept: the person with administrative control over the specific records, defined by A.C.A. § 25-19-103(2)(A) and elaborated in Fox v. Perroni, 358 Ark. 251 (2004), as someone "charged with the responsibility of managing the affairs and conduct" of the entity. For elected officials' emails, the FOIA custodian may be the elected official themselves, the clerk for that office, or another person with administrative control, depending on the facts. If a person who is not the custodian receives a FOIA request, the statute (A.C.A. § 25-19-105(a)(3)(C)) requires them to identify the actual custodian "if known or readily ascertainable."
Question 4 (retention period for the emails) was answered by reference to Question 2: there is no specific retention period because the emails are not listed in the retention statutes.
What this means for you
If you are a justice of the peace, county judge, or other elected county official
Treat your work email as a public record by default. If a citizen asks for it through FOIA, the answer in most cases is going to be release (with personal-content emails carved out). Two practical rules:
- Do not use personal email accounts for county business. The opinion confirms that storing a public record on a personal device or account does not strip it of public-record status. Mixing accounts only makes the FOIA response harder and gives requesters a basis to subpoena your personal accounts.
- Do not rely on the absence of a retention rule to delete politically inconvenient emails. The records-retention statutes set a floor, not a ceiling, and a deletion that follows or precedes a FOIA request can support a spoliation argument. If you would not want the deletion explained in court, do not do it.
If you are a county clerk or records custodian
You have to evaluate emails individually. The opinion is explicit that "the custodian must evaluate individual emails on a case-by-case basis." Build a workflow that distinguishes work emails (presumptively public) from purely personal emails (presumptively not). When in doubt, treat as public and apply any narrow exemption that fits.
If a FOIA request lands on your desk and you are not the actual custodian for those specific records, A.C.A. § 25-19-105(a)(3)(C) requires you to respond and identify the proper custodian. Do not just sit on it.
If you are a citizen, journalist, or transparency advocate filing a FOIA request
Two practical takeaways. First, you can request emails between elected county officials as public records. The AG confirms they generally qualify. Second, do not assume the emails still exist. Arkansas does not require counties to retain inter-official emails for any specific period, so a request for older emails may come back empty even when the law would have allowed disclosure. If retention timing matters, file your request early, and consider filing a parallel records-preservation request that puts the county on notice not to delete.
If you are a prosecuting attorney advising county officials
The AG draws three lines worth flagging in client guidance: (1) public-record vs. personal-content (case by case, by content); (2) disclosure (FOIA) vs. retention (different statutes, different rules); and (3) general "custody" (property concept, county judge) vs. FOIA "custodian" (administrative control over specific records). Conflating any of these in advice or in litigation creates risk.
Common questions
Q: Is every email I send from my official county email address a public record?
A: No. The custodian must look at content. Emails about county business are public records; purely personal emails are not. The email address you used does not control; the content does (Ark. Att'y Gen. Op. 91-374).
Q: I sent county-business emails from my personal Gmail. Are they still public records?
A: Yes. The medium does not matter. If the content reflects the performance of official functions, the email is a public record subject to FOIA, even if it lives on a personal device or account (Ark. Att'y Gen. Op. 2000-220).
Q: How long does the county have to keep emails between quorum court members?
A: Arkansas's record-retention statutes (A.C.A. §§ 13-4-302 to -308) do not list inter-member emails as a category that must be retained. So the county is not statutorily required to keep them for any specific period. Caveat: if the email itself constitutes part of an item on the retention list (e.g., it is the quorum court minutes, or it is a financial document required to be kept), the underlying retention rule applies to that content.
Q: Who is the FOIA custodian for a justice of the peace's emails?
A: The person with "administrative control" of those records (A.C.A. § 25-19-103(2)(A); Fox v. Perroni). That may be the JP, the county clerk, an IT administrator, or someone else, depending on how the county handles email storage and access. The county judge's general "custody" of county property under Amendment 55 is not the same as FOIA custodianship.
Q: I got a FOIA request but I am not the custodian. Can I just ignore it?
A: No. Under A.C.A. § 25-19-105(a)(3)(C), you must respond and identify the actual custodian "if known or readily ascertainable." The statute does not let you discard the request silently.
Q: Can the county adopt a local ordinance requiring longer retention than the state statute?
A: The opinion does not address this directly. Counties have inherent authority over their own administrative records management to a point, but a local ordinance cannot reduce a state-required retention period. Adding to retention is generally allowed and is best practice for transparency.
Q: Is there a separate exemption that protects emails about active investigations or pending matters?
A: Possibly. The opinion is general and does not opine on specific exemptions. Common candidates include the law-enforcement exemption, attorney-client privilege, and the investigative-records exemption. Each has its own statutory test. The custodian must apply them on a record-by-record basis.
Background and statutory framework
The Arkansas FOIA defines "public records" at A.C.A. § 25-19-103(15)(A): writings, recordings, and electronically-stored information, kept, and constituting a record of the performance or lack of performance of official functions by a public official or employee. Records held by a public entity are presumed public, with a rebuttable burden on the custodian to show otherwise (Pulaski Cnty. v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435 (2007)).
The "custodian" under A.C.A. § 25-19-103(2)(A) is the person "having administrative control" of the records. Fox v. Perroni, 358 Ark. 251 (2004), expanded this definition: the FOIA custodian is anyone "charged with the responsibility of managing the affairs and conduct" of the FOIA-subject entity, with both "the power and responsibility" to provide responsive records. This is a functional, not titular, test.
The county judge's general "custody" of county property under Ark. Const. amend. 55, § 3 and A.C.A. § 14-14-1102(b)(3)(A) is a property-management concept distinct from FOIA custodianship. The two can but do not always overlap.
A.C.A. § 14-14-110(a) supplements FOIA by directing counties to make records "available for inspection and copying" by any person during normal office hours, with broader exemptions than FOIA for personal/medical records (A.C.A. § 14-14-110(b)).
Records retention sits in A.C.A. §§ 13-4-302 to -308. These statutes enumerate categories of county records that must be kept (court records, certain tax/assessment, financial, marriage, voter registration and election, corporation, recorder's records). Quorum court minutes, records of proceedings, and codification of ordinances under § 13-4-302(3) must be retained permanently. Inter-member emails are not on the list, so no specific retention period applies to them under these statutes.
A.C.A. § 25-19-105(a)(3)(C) requires any recipient of a FOIA request who is not the actual custodian to identify the proper custodian.
Citations and references
Arkansas FOIA and county records statutes:
- A.C.A. § 25-19-103 (definitions)
- A.C.A. § 25-19-105 (procedures)
- A.C.A. § 14-14-110 (county records inspection)
- A.C.A. §§ 13-4-302 to 13-4-308 (county records retention)
- Ark. Const. amend. 55, § 3 (county judge custody of county property)
- A.C.A. § 14-14-1102(b)(3)(A) (county judge powers)
Cases:
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004) (custodian definition)
Prior AG opinions cited:
- Op. 2000-096, 99-018, 97-115 (emails between officials are public records)
- Op. 97-145, 91-374 (purely personal emails are not public records)
- Op. 2000-220 (storing on personal device/account does not strip public-record status)
- Op. 2009-014, 2000-220 (FOIA is disclosure, not retention)
- Op. 2023-101 (three-element FOIA test)
- Op. 2013-147, 2007-290, 2002-228 (custodian as administrative-control concept)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
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?
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, although that presumption is rebuttable. 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."
While emails between public officials, like justices of the peace, generally constitute "public records" under the FOIA, 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." 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.
When an email is a "public record" under the FOIA, it is open to public inspection and copying unless a specific exemption applies. 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."
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. 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." 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."
The "custodian" is defined as the person "having administrative control" of the records, or someone who is "charged with the responsibility of managing the affairs and conduct" of the entity subject to the FOIA. 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."
Although county judges have general "custody" over all county property, 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