If a city or county gets a state report listing all businesses that remitted sales tax there, can a citizen FOIA that report? And can the city pass an ordinance keeping it secret?

Subject

Whether a Department of Finance and Administration report naming businesses that remitted local sales and use taxes can be released under FOIA, and whether a municipality can create a local disclosure exemption.

Plain-English summary

Arkansas law allows the chief executive officer of a county, city, or town to request a Department of Finance and Administration report listing businesses that remitted sales and use taxes for that government. Senator Penzo asked whether the receiving government must disclose the report under FOIA and whether a local ordinance could bar disclosure of information that otherwise would be public.

The Attorney General concluded that business names showing sales and use tax remittance are “information pertaining to any tax return” under A.C.A. § 26-18-303 and should be withheld from FOIA release. But he did not have the actual reports before him. His analysis assumed a report containing only those names, and he expressly said he could not definitively conclude that all reports under A.C.A. § 26-73-115 are exempt. The custodian must examine each specific report and its contents. Because he found the tax-information exemption applicable to the assumed report, he did not decide whether FOIA's competitive-advantage exemption also applied.

On the second question, the Attorney General said a municipality cannot create or expand a FOIA exemption by ordinance. “Public information and open meetings” are state affairs under A.C.A. § 14-43-601, and municipal legislation on those affairs may not conflict with state law. An ordinance prohibiting disclosure of otherwise releasable FOIA information would directly conflict with FOIA and be preempted.

What this means for you

If you hold a DFA remitter report for local government

The opinion finds names of businesses that remitted sales and use taxes exempt from FOIA under the Tax Procedure Act. Review the particular report before deciding what to release or withhold; the Attorney General did not examine one and did not rule on every possible report format or field. The opinion addresses FOIA disclosure, not internal circulation or permissible operational uses.

If you draft local disclosure rules

An ordinance cannot make information confidential when FOIA otherwise requires its release. The opinion treats that as a direct conflict with state law. It does not decide whether a municipality may adopt a different rule that increases access, nor does it prescribe internal handling of the DFA report.

If you request these records

The opinion gives a specific reason to withhold names identifying businesses that remitted sales and use taxes. It also insists on a custodian's review of the actual record. Its conclusion does not decide the status of every possible field in every report prepared under § 26-73-115.

Common questions

Q: Why did the Attorney General treat remitter names as tax information? A: He read A.C.A. § 26-18-303's exemption for “information pertaining to any tax return” to cover names showing that businesses remitted sales and use taxes. He compared the report with an earlier opinion about tax-arrears information.

Q: Did the Attorney General inspect the report?
A: No. He assumed a report containing only business names and said the custodian must review the specific record to decide which exemptions apply.

Q: Did he decide whether disclosure would create a competitive disadvantage? A: No. The tax-information exemption resolved his assumed scenario, so he did not reach A.C.A. § 25-19-105(b)(9)(A).

Q: Can a city pass an ordinance withholding information that FOIA would disclose? A: No. The opinion says such an ordinance would directly conflict with FOIA, and the General Assembly has not delegated authority to municipalities to create or modify FOIA exemptions.

Q: Does this opinion ban sharing the report inside a local government? A: It does not address internal sharing. Its first question concerns release under FOIA, and its second concerns a local ordinance restricting FOIA disclosure.

Background and statutory framework

A.C.A. § 26-73-115(a) authorizes the requested report. A.C.A. § 26-18-303 exempts tax returns and related information from FOIA, while § 26-18-104(12) defines “tax return.” The Attorney General notes that another statute can supply a FOIA exemption and that § 26-18-303 contains exceptions, but none for the names at issue here. For municipal authority, the opinion applies A.C.A. §§ 14-43-601 and 14-43-602, the distinction between municipal and state affairs, and conflict preemption. It quotes Hopkins v. City of Brinkley for the General Assembly's role in deciding which records are exempt.

Citations and references

• A.C.A. § 26-73-115(a), cited in the request; A.C.A. § 26-18-303 and § 26-18-104(12), opinion footnotes 8 and 10.
• A.C.A. § 25-19-105(b)(9)(A), discussed but not decided in Question 1.
• A.C.A. §§ 14-43-601 and 14-43-602, opinion footnotes 13 and 18–19.
• Hopkins v. City of Brinkley, 2014 Ark. 139, 432 S.W.3d 609, opinion footnote 31.
• Ark. Att’y Gen. Op. 93-038, discussed as a tax-information comparison.

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2026-007

February 12, 2026

The Honorable Clint Penzo
State Senator
Post Office Box 7988
Springdale, Arkansas 72766

Dear Senator Penzo:

I am writing in response to your request for my opinion on the Arkansas Freedom of Information Act (FOIA), certain reports created under A.C.A. § 26-73-115, and the authority of local governments to enact ordinances restricting the release of some or all of those reports.

You note that A.C.A. § 26-73-115(a) authorizes the “chief executive officer of a county, city, or town” to request from the Department of Finance and Administration “a report listing all businesses remitting sales and use taxes for the requesting governmental entity.”

Against this background, you ask the following two questions:

1. Assuming the above procedures are followed, and assuming a report is provided to a
   requesting governmental entity through its chief executive officer, is some or all of the
   information in the report then considered a public record subject to disclosure by the
   receiving governmental entity under the Arkansas Freedom of Information Act?

   Brief response: No. In my opinion, the report may not be released under the FOIA because
   it falls within A.C.A. § 26-18-303’s exemption for “information pertaining
   to any tax return.” While that statute contains multiple exceptions, the
   General Assembly has not carved out an exception that would permit the
   disclosure of the information at issue here.

2. If some or all of the report is subject to disclosure by the receiving governmental entity,
   may the receiving governmental entity pass a local ordinance prohibiting the disclosure of
   any information in the report that is otherwise subject to disclosure under the Arkansas
   Freedom of Information Act?

   Brief response: No. A municipality cannot pass a local ordinance prohibiting the release
   of information that is otherwise subject to disclosure under the FOIA.
   BOB R. BROOKS JR. JUSTICE BUILDING
   101 WEST CAPITOL AVENUE
   LITTLE ROCK, ARKANSAS 72201

The Honorable Clint Penzo
State Senator
Opinion No. 2026-007
Page 2

Such an ordinance would directly conflict with the FOIA. And while the General Assembly may create exemptions to the FOIA’s disclosure requirements, a municipality cannot.

DISCUSSION

Question 1: Assuming the above procedures are followed, and assuming a report is provided to a requesting governmental entity through its chief executive officer, is some or all of the information in the report then considered a public record subject to disclosure by the receiving governmental entity under the Arkansas Freedom of Information Act?

1. General rules. A record must be released in response to a FOIA request if all three of the
   following elements are met. First, the FOIA request must be directed to an entity subject to the FOIA.1 Second, the requested document must constitute a public record.2 Third, the document must not be subject to an exemption by the FOIA or other statutes.3

The first two elements appear to be met here. A county, city, or town is a public entity subject to the FOIA.4 And when the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable.5

Under the FOIA, a writing, recording, or other electronically-stored piece of information is defined as a “public record” when (1) it is “kept” and (2) it “constitute[s] a record of the performance or lack of performance of official functions.”6 If a record meets both of these requirements, it is a “public record” under the FOIA; a record that fails either requirement is not. This definition includes all records in the physical possession of a public agency or under its “administrative control,” including records generated by third parties.7

1
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
2
Id.
3
Id.
4
See, e.g., A.C.A. § 25-19-103(13)(B) (including “municipalities” and “counties” as “public entities”).
5
See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[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)). 6 A.C.A. § 25-19-103(15)(A).
7
City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990).

The Honorable Clint Penzo
State Senator
Opinion No. 2026-007
Page 3

I have no information to suggest that the presumption can be rebutted in this instance, so I will turn to whether any exemptions prevent the release of the reports listing all businesses remitting sales and use taxes for the requesting governmental entity.

2. FOIA exemptions. The FOIA contains numerous exemptions. Because I do not have the
   specific records before me, I cannot definitively conclude that all the reports listing businesses that have remitted taxes under A.C.A. § 26-73-115 are exempt. Assuming the report contains only the names of businesses that have remitted taxes, two common but narrow exemptions for tax and financial information are relevant: tax return information under A.C.A. § 26-18- 303 and the competitive-advantage exemption under A.C.A. 25-19-105(b)(9)(A). For reasons explained below, since the former applies there is no need for me to address the latter. Consequently, it is my opinion that the information should be withheld from release.

3. Tax information exemption. Under A.C.A. § 26-18-303 of the Arkansas Tax Procedure
   Act, “all tax returns … and information pertaining to any tax returns, whether filed by individuals, corporations, partnerships, or fiduciaries, shall not be subject to the [FOIA].”8 This is an example of the General Assembly expressly creating an exception to the FOIA in a statute outside of the FOIA itself.9 The statute defines “tax return” broadly to include “any tax or information return, report, [or] declaration of estimated tax … required by … any state tax law.”10

In Opinion 93-038, one of my predecessors determined that a list of alcohol permit holders who were “in arrears for state or local sales tax” was confidential under A.C.A. § 26-18-303 and exempt from disclosure. In my opinion, the report here is similar and likewise falls within the FOIA exemption under A.C.A. § 26-18-303 for “information pertaining to any tax return.”11 And while that statute contains multiple exceptions, the General Assembly has not carved one out for the information at issue in this opinion.

                                     *                *                *

In sum, it is my opinion that the names of businesses that have remitted sales and use taxes are exempt from release under A.C.A. § 26-18-303. Nevertheless, the custodian must review the specific records and determine whether any exemptions apply.

8
See also A.C.A. 26-18-303(c) (“The provisions of this section shall be strictly interpreted and shall not permit any other disclosure of tax information concerning a taxpayer[.]”). 9 See, e.g., Ark. Att’y Gen. Ops. 2013-029, 2012-143.
10
A.C.A. § 26-18-104(12).
11
See Ark. Att’y Gen. Op. 97-384 (construing a different provision of A.C.A. § 26-18-303 but applying the same textual analysis).

The Honorable Clint Penzo
State Senator
Opinion No. 2026-007
Page 4

Question 2: If some or all of the report is subject to disclosure by the receiving governmental entity, may the receiving governmental entity pass a local ordinance prohibiting the disclosure of any information in the report that is otherwise subject to disclosure under the Arkansas Freedom of Information Act?

For the reasons discussed below, a municipality cannot pass a local ordinance prohibiting the release of information that is otherwise subject to disclosure under the FOIA. Such an ordinance would directly conflict with the FOIA. And while the General Assembly may create exemptions to the FOIA’s disclosure requirements, a municipality cannot.

1. Municipal authority. Cities, towns, and other municipalities “are creatures of the legislature”
   and have only powers as delegated to them by the General Assembly.12 This expressly delegated authority includes both the broad “police power” and statutory “Home Rule,” which is the general power to act concerning “municipal affairs.”13

   1.1. Police power. The police power is the power inherent in state sovereignty and is not a
   grant derived from any constitution.14 Although municipalities do not inherently have this power,15 the General Assembly has expressly delegated it to them. The “police power” delegated to municipalities is the power to “make and publish bylaws and ordinances, not inconsistent with the laws of this state, which, as to them, shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof.”16

   1.2. “Municipal affairs” vs. “state affairs.” Under A.C.A. § 14-43-602(a), cities, towns, and
   other municipalities are also “authorized to perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs,” if the legislation is not “contrary to the general laws of the state.”17 “Public information and open

12
Ark. Const. art. 12, § 4; Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600, 603 (1998).
13
A.C.A. § 14-43-602 (allowing municipalities to “perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs”); see also Ark. Att’y Gen. Op. 2012-051 (surveying the applicable statutes and case law). 14 Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719, 721 (1941); see also Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the State of the American Union 831–32 (7th ed. 1903) (“In the American constitutional system, the power to establish the ordinary regulation of police has been left with the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislation of Congress,” and the “national government” cannot assume any supervision of the police regulations of the States.”). 15 Eugene McQuillin, The Law of Municipal Corporations § 24:6 (3d ed. 2024).
16
A.C.A. § 14-55-102 (emphasis added).
17
Ark. Const. art. 12, § 4.

The Honorable Clint Penzo
State Senator
Opinion No. 2026-007
Page 5

meetings” are expressly “state affairs” and not “municipal affairs.”18 A city, however, “may legislate upon” such “state affairs … if not in conflict with state law.”19

2. State preemption. State statutes can preempt municipal ordinances in three ways:20 (1) express
   preemption;21 (2) field preemption;22 and (3) conflict preemption.23 First, express preemption occurs when the text of a statute expressly forecloses local legislation on the topic. Second, field preemption occurs when the breadth of state regulation indicates that the General Assembly intends to “hold the field” of a particular area of law, or regulate “an area completely so as to not leave reasonable room for local regulation.”24 “The General Assembly should be clear when it intends to pre-empt a field that otherwise could be validly regulated by … ordinance.”25 This clarity is necessary because Arkansas’s Home Rule Act grants municipalities broad authority to regulate unless the regulation is “in conflict with state law.”26 Last, conflict preemption occurs when an ordinance is contrary to or irreconcilable with state statutes,27 or when it is less restrictive than state statutes.28

3. Application. Under the FOIA, all public records are open to inspection unless exempt (1) under
   the FOIA itself; (2) under state or federal statutes that expressly provide for nondisclosure; or (3)

18
See A.C.A. 14-43-601(a)(1)(A); Ark. Att’y Gen. Op. 2001-052.
19
A.C.A. § 14-43-601(a)(2)(B).
20
Preemption for state laws largely mirrors the doctrine of federal preemption. See, e.g., Kollmeyer v. Greer, 267 Ark. 632, 636, 593 S.W.2d 29, 31 (1980) (noting that a situation concerning a state statute and a local ordinance was “comparable to the federal doctrine of pre-emption that is utilized in reconciling federal law with any state law that seeks to regulate the same subject matter”). 21 See, e.g., McNeill, 120 S.W.3d at 608–09; Kollmeyer, 267 Ark. at 636–37, 593 S.W.2d at 30–32; Ark. Att’y Gen. Op. 2015-088. 22 See, e.g., Ark. Att’y Gen. Ops. 2015-088 (reviewing a state statute that “prohibits localities from regulating in th[e] field” of “antidiscrimination law”), 2005-129 (“The State may preempt any local legislative authority by regulating an area completely so as not to leave reasonable room for local regulation.”). 23 Kollmeyer, 267 Ark. at 637, 593 S.W.2d at 31 (holding that certain local ordinances were “inconsistent [with] and in conflict with” certain state statutes). 24 E.g., Ark. Att’y Gen. Ops. 2015-088, 2005-129.
25
Kollmeyer, 267 Ark. at 637, 593 S.W.2d at 31.
26
A.C.A. § 14-43-601(a)(2)(B).
27
E.g., Tompos v. City of Fayetteville, 280 Ark. 435, 437–38, 658 S.W.2d 404, 406 (1983).
28
E.g., Ark. Att’y Gen. Op. 86-086.

The Honorable Clint Penzo
State Senator
Opinion No. 2026-007
Page 6

under the Constitution.29 When the General Assembly has not expressly created an exemption, or the applicability of an exemption is unclear, “privacy must yield to openness and secrecy to the public’s right to know.”30

Generally, “[w]hether certain records should be exempt from the FOIA is a public-policy decision that must be made by the General Assembly.”31 The General Assembly has created numerous FOIA exemptions, but it has not authorized municipalities to create or modify FOIA exemptions through local legislation. In the absence of such authority, a municipality that passes an ordinance creating a FOIA exemption is in conflict with state law.

4. Conclusion. In my opinion, a municipality cannot pass a local ordinance prohibiting the release
   of information that is otherwise subject to release under the FOIA. Doing so would directly conflict with the FOIA and therefore would be preempted by state law.

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

Sincerely,

TIM GRIFFIN
Attorney General

29
A.C.A. § 25-19-105(a)(1); see also Ark. Att’y Gen. Ops. 2009-130 (discussing State and federal statutory exemptions), 2004-248 (discussing constitutional exemptions). 30 Ragland v. Yeargan, 288 Ark. 81, 85–86, 702 S.W.2d 23, 25 (1986).
31
Hopkins v. City of Brinkley, 2014 Ark. 139, 12, 432 S.W.3d 609, 617.