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 list of businesses remitting sales and use taxes, prepared by the Department of Finance and Administration (DFA) and furnished to the chief executive officer of a city, town, or county under A.C.A. § 26-73-115, is a public record subject to release under FOIA, and whether a municipality may enact a local ordinance restricting disclosure beyond what state law requires.
Plain-English summary
Senator Clint Penzo asked the AG about a specific class of report. Under A.C.A. § 26-73-115(a), a city, town, or county chief executive officer (the mayor or county judge) can ask DFA for a "report listing all businesses remitting sales and use taxes for the requesting governmental entity." The questions: once the city or county has the report, is it a public record subject to FOIA disclosure, and if so, can the local government pass an ordinance to keep it confidential anyway?
The AG answered no on both counts.
On disclosure: the list is confidential under A.C.A. § 26-18-303 of the Arkansas Tax Procedure Act. That statute makes "all tax returns, and information pertaining to any tax returns" exempt from FOIA. The phrase "information pertaining to any tax return" is broad. The AG concluded that a list of businesses that have remitted sales and use taxes squarely falls within that phrase, since whether a particular business has filed and remitted is "information pertaining to" that business's tax filings. A 1993 AG opinion (Op. 93-038) had reached the same conclusion about a list of alcohol-permit holders in arrears for sales tax.
This is a "FOIA exemption created by another statute" pattern: A.C.A. § 26-18-303 sits outside the FOIA itself, but FOIA at A.C.A. § 25-19-105(a)(1) recognizes exemptions in other statutes. The General Assembly is allowed to do this and has done so for tax-return information specifically. The interpretation rule, "strictly interpreted" in A.C.A. § 26-18-303(c), cuts toward keeping the information confidential rather than reading exceptions into the statute.
The AG declined to also analyze the FOIA's own competitive-advantage exemption (A.C.A. § 25-19-105(b)(9)(A)), since the tax-information exemption already disposes of the question. So the analytical answer is narrow: tax-information exemption applies, no further analysis needed.
On preemption: a city cannot create a new FOIA exemption by ordinance. The opinion walks through three modes of preemption (express, field, conflict) and concludes that any ordinance restricting access to records that are otherwise public under FOIA would be preempted as a conflict with state law. The General Assembly has the exclusive role in creating FOIA exemptions; municipalities have no delegated authority to do so. "Public information and open meetings" are explicit "state affairs" under A.C.A. § 14-43-601(a)(1)(A), not "municipal affairs," so the city's home-rule authority does not stretch to creating local FOIA exemptions.
The opinion's final framing flips the usual principle: when records are already public under state law, a city cannot make them more secret. The reverse can also happen, a city making records more public than state law requires. That is generally fine because adding to transparency is consistent with the statewide policy of openness.
What this means for you
If you are a city or county chief executive officer
If you request a tax-remitter list from DFA under § 26-73-115, treat the report you receive as confidential. It is exempt from FOIA under A.C.A. § 26-18-303. You can use it for the legitimate revenue and economic-development purposes contemplated by the statute, but you cannot share it with anyone outside the small circle of people who have a need-to-know within the chief executive's office. Storing it where general staff or other departments can browse it creates risk that someone will release it improperly.
If you are a city council member or city attorney
Do not pass an ordinance trying to make publicly available records secret. The AG is explicit: only the General Assembly creates FOIA exemptions. A local ordinance that conflicts with FOIA is preempted. If the policy concern is that a particular type of city record should not be public, the right response is a legislative ask to your state senator or representative, not a local ordinance.
You can pass ordinances increasing transparency above the state-law floor (e.g., publishing more information than FOIA requires). That is consistent with FOIA's purpose. Going the other direction is not.
If you are a journalist or transparency advocate
Two practical takeaways. First, do not file FOIA requests with cities or counties for the DFA tax-remitter list. The list is confidential under the Tax Procedure Act, and a city or county cannot release it even if it wanted to. Asking only telegraphs your interest. Second, if you encounter a city ordinance asserting confidentiality over what would otherwise be public records (e.g., police use-of-force reports, contract documents, council emails), this opinion is your authority for arguing that the ordinance is preempted.
If you run a business that remits sales tax to an Arkansas city or county
The fact that you remitted, and how much, is confidential under A.C.A. § 26-18-303 and stays that way after DFA shares the report with the local CEO. You do not need to worry that a competitor will obtain the list of remitters via FOIA. If the city or county is sharing the list publicly, that is potentially an unlawful disclosure; raise it with the city attorney.
If you are an economic development officer
You can use the DFA report internally to inform business-attraction strategy, identify gaps in the local sales-tax base, and communicate with DFA about discrepancies. You cannot publish remitter names in a public report, slide deck, or grant application, even one circulated only to a board.
Common questions
Q: Why is the remitter list considered "tax-return information"?
A: A.C.A. § 26-18-104(12) defines "tax return" broadly: "any tax or information return, report, declaration of estimated tax, required by any state tax law." Whether a business has filed and remitted is data about its return-filing behavior, so the list of remitters is "information pertaining to" their returns, falling within the § 26-18-303 exemption.
Q: Can a citizen still get a list of business taxpayers in their city through some other route?
A: A list of holders of active business licenses (issued by the city or by the state) is generally a different record and may be public. The DFA-prepared list of who remitted sales tax is what is confidential. License lists, tax-collected totals (in aggregate, not per-taxpayer), and other public-finance data may be available through different channels.
Q: What about exception clauses in § 26-18-303?
A: The statute does carry exceptions, but only those the General Assembly enacted. The AG specifically observed that "the General Assembly has not carved out an exception that would permit the disclosure of the information at issue here." Anyone interested in disclosure would need a statutory amendment, not an AG opinion or local ordinance.
Q: What is "express preemption" versus "field preemption" versus "conflict preemption"?
A: Three doctrines for how state statutes override local ordinances. Express preemption is when the statute's text says so. Field preemption is when state regulation is so comprehensive that it leaves no room for local rules. Conflict preemption is when an ordinance is irreconcilable with, or less restrictive than, a state statute. The AG concluded that an ordinance creating a FOIA exemption would be a conflict-preemption case: it would directly contradict the FOIA's grant of public-record status.
Q: Can a city require a higher level of public disclosure than FOIA requires?
A: This opinion does not directly address that, but the answer in Arkansas is generally yes, more transparency is consistent with the statewide policy and is unlikely to be preempted. The constitutional and statutory bar is on cities trying to restrict access below the state-law floor.
Q: What about FOIA's competitive-advantage exemption?
A: The AG flagged it but declined to decide. Because the tax-information exemption already keeps the report confidential, there was no need to also analyze whether release would put a business at a competitive disadvantage. If the tax-information exemption did not apply for some reason, the competitive-advantage analysis would still be available as a fallback.
Background and statutory framework
A.C.A. § 26-73-115(a) authorizes the chief executive officer of a county, city, or town to request from DFA a report listing all businesses remitting sales and use taxes for that jurisdiction. The statute does not on its face address whether the resulting report is public.
A.C.A. § 26-18-303 (Arkansas Tax Procedure Act) makes "all tax returns, and information pertaining to any tax returns" confidential and exempts them from FOIA. Subsection (c) directs that the section "shall be strictly interpreted and shall not permit any other disclosure of tax information concerning a taxpayer." A.C.A. § 26-18-104(12) defines "tax return" broadly.
The FOIA itself permits exemptions created by other statutes (A.C.A. § 25-19-105(a)(1)). The Arkansas Supreme Court has long treated the tax-confidentiality exemption as a narrow but real carve-out from the general policy of openness.
On preemption, A.C.A. § 14-43-601(a)(1)(A) classifies "public information and open meetings" as "state affairs," not municipal affairs, removing them from the home-rule authority granted by A.C.A. § 14-43-602(a). A municipality may legislate on state affairs only "if not in conflict with state law" (A.C.A. § 14-43-601(a)(2)(B)). An ordinance creating a FOIA exemption that the legislature has not authorized would directly conflict with the FOIA. The Arkansas Supreme Court has applied conflict preemption to invalidate ordinances "irreconcilable with state statutes" or "less restrictive than state statutes" (Tompos v. City of Fayetteville).
Hopkins v. City of Brinkley (2014) reiterated that "[w]hether certain records should be exempt from the FOIA is a public-policy decision that must be made by the General Assembly," cementing the legislature's exclusive role.
Citations and references
Statutes:
- A.C.A. § 26-73-115 (DFA reports to local CEOs)
- A.C.A. § 26-18-303 (tax information confidentiality)
- A.C.A. § 26-18-104(12) (tax return defined)
- A.C.A. § 25-19-105 (FOIA exemptions)
- A.C.A. § 14-43-601 (state affairs vs. municipal affairs)
- A.C.A. § 14-43-602 (home rule)
- Ark. Const. art. 12, § 4 (municipal authority)
Cases:
- Hopkins v. City of Brinkley, 2014 Ark. 139, 432 S.W.3d 609
- Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983)
- Kollmeyer v. Greer, 267 Ark. 632, 593 S.W.2d 29 (1980)
- Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998)
- Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007)
- Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986)
Prior AG opinions:
- Ark. Att'y Gen. Op. 93-038 (alcohol-permit-arrears list confidential under § 26-18-303)
- Ark. Att'y Gen. Op. 97-384 (textual analysis of § 26-18-303)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
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. 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. 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. Second, the requested document must constitute a public record. Third, the document must not be subject to an exemption by the FOIA or other statutes.
The first two elements appear to be met here. A county, city, or town is a public entity subject to the FOIA. And when the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable.
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." 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.
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.
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.
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]." This is an example of the General Assembly expressly creating an exception to the FOIA in a statute outside of the FOIA itself. 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."
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." 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.
Question 2. 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.
Cities, towns, and other municipalities "are creatures of the legislature" and have only powers as delegated to them by the General Assembly. This expressly delegated authority includes both the broad "police power" and statutory "Home Rule," which is the general power to act concerning "municipal affairs."
The police power is the power inherent in state sovereignty and is not a grant derived from any constitution. Although municipalities do not inherently have this power, 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."
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." "Public information and open meetings" are expressly "state affairs" and not "municipal affairs." A city, however, "may legislate upon" such "state affairs, if not in conflict with state law."
State statutes can preempt municipal ordinances in three ways: (1) express preemption; (2) field preemption; and (3) conflict preemption. 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." "The General Assembly should be clear when it intends to pre-empt a field that otherwise could be validly regulated by, ordinance." 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." Last, conflict preemption occurs when an ordinance is contrary to or irreconcilable with state statutes, or when it is less restrictive than state statutes.
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) under the Constitution. 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."
Generally, "[w]hether certain records should be exempt from the FOIA is a public-policy decision that must be made by the General Assembly." 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.
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