Arkansas Freedom of Information Act

The Arkansas Freedom of Information Act (FOIA), signed into law by Governor Winthrop Rockefeller on February 14, 1967, is generally considered one of the strongest and best models for open government by investigative reporters and others who research public records for various purposes. The intent of the FOIA is to keep government business and government records open and accessible to the people of Arkansas. The Arkansas FOIA has been called “the people’s law” in that it provides the citizens of Arkansas open access to the conduct of the public’s business at every level of government, as well as ready access to public records on file with a host of custodians for those records in county courthouses, city halls, public schools, and other public facilities across the state.

The passage of the Arkansas FOIA did not come without a legislative struggle. At that time in Arkansas’s history, the bulk of the political power in Arkansas was held in the hands of a few. That included local political machines from the municipal level up to and including government at the state level. State senator Ben Allen, a Little Rock (Pulaski County) attorney, and state Representative Leon Holsted, a North Little Rock (Pulaski County) druggist, both legislative leaders at the time, were the lead sponsors on the original bill. Shortly after Gov. Rockefeller signed the bill into law, the FOIA was tested in court in a lawsuit that went all the way to the Arkansas Supreme Court, where the justices ruled unanimously in favor of preserving the Arkansas FOIA. The bulk of the opposition to the passage of the law, and those initiating early court challenges to the law, were those desiring to preserve the status quo of doing the public’s business behind closed doors and out of view of the taxpaying public. In contrast to this was the Arkansas Supreme Court’s opinion, written by then associate justice George Rose Smith, which read: “It is vital in a democratic society that public business be performed in an open and public manner. We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.” When Gov. Rockefeller left office in 1971 he pointed to the passage of the Arkansas Freedom of Information Act as one of the crowning achievements of his administration.

Initially called Act 93 of 1967, the “Arkansas Freedom of Information Act of 1967” is codified as Arkansas Code Annotated 25-19-101-109 et seq. It is brief, but its plain language leaves little room for interpretation. When interpretation has been needed, the courts of Arkansas have generally favored openness of government and government records. The lawsuit of Laman v. McCord was filed only weeks after the FOIA was enacted and established the framework for interpreting the new law.

The FOIA provides guidelines on what constitutes a public meeting and provides requirements for notifications when regular or special meetings of public governing bodies are scheduled. Under the law, a meeting is defined as a gathering of any bureau, commission, or agency of the state, including municipalities, supported wholly or in part by public funds or that are expending public funds. The FOIA also establishes what qualifies as a public record and provides guidelines for public access to those records. Violators of the law may be found guilty of a Class C misdemeanor, with a maximum penalty of a $100 fine and thirty days in jail.

The Arkansas FOIA continues to be updated to accommodate changes in technology that allow electronic access to public records, including court records. While none of this was necessary at the time of the passage of the FOIA, technology has significantly changed the way Arkansans and others do business, including the conduct of research through access to public records.

Since being signed into law, the Arkansas FOIA has been amended several times. These exemptions, created by the Arkansas legislature, amend the law to specifically protect such things as grand jury minutes, adoption records, and the identity of law enforcement officers currently working undercover, along with other protections. However, some exemptions have been controversial. For example, in March 2017, an exemption which became law under Governor Asa Hutchinson prevents the disclosure of any information regarding the police force that serves the Arkansas State Capitol. On April 5, 2021, the Arkansas House of Representatives passed HB 1280, which would allow city and county government boards to meet in secrecy (with attorneys) for purposes of economic development. However, in the Senate, the bill failed to make it out of committee.

The 2019 Arkansas Supreme Court case of City of Fort Smith v. Wade largely undid the traditional definition of a “meeting,” which had previously required public notification, and thus opened the door for more informal assemblies to conduct government business. That same year, the Arkansas Court of Appeals ruled in Pulaski County Special School District v. Delaney that requests for records under FOIA specifying delivery in an electronic format and e-mailed to the person requesting must be provided in such a manner should the agency have the capability. In 2020, the Arkansas Court of Appeals ruled in Ben Motal v. City of Little Rock that individuals had the right to copy public records using their own devices at no cost. This ruling was backed up by Act 310 of 2021, which amended the FOIA to permit “copying through image capture, including still and moving photography and video and digital recording.”

The 2023 regular legislative session witnessed dueling attempts to modify the state’s FOIA. Sen. Alan Clark of Lonsdale (Garland County) SB382, which would specify that two or more members “of a governing body of a public entity shall neither discuss, deliberate, nor decide public business of a governing body or of a public entity in circumvention of the spirit and express requirements” of the law “during any chance interaction, informal assemblage, or electronic communication.” It failed to get a motion in the Senate. Clark also filed SB381, which would have required members of the governing body of any city, county, or school board to attend a yearly one-hour training on FOIA, but it was voted down in the Senate. He also filed SB380, which would require custodians of public records to respond in writing if the requested records did not exist or were covered by an exemption; it passed, becoming Act 879. Taking a different approach, Rep. Mary Bentley of Perryville (Perry County) filed HB1610, which would have permitted public officials to meet and discuss policy in secret so long as an official quorum was not present; this bill failed to pass out of committee on March 15, 2023, but, after being amended to reduce the number present to one-third of the official body, it passed out of committee on March 29, 2023, and passed the full House the following day. However, the bill died in a Senate committee on April 4, 2023. Likewise, Rep. David Ray of Maumelle (Pulaski County) filed HB1726 on March 27, 2023, a bill that would create FOIA exemptions for records such as drafts, notes, memoranda, correspondence, and more; the bill also allowed the government to charge not just for the cost of making copies but for the labor it takes to retrieve and process records, should that time exceed eight hours, according to “the salary or hourly pay of the lowest paid employee or contractor who, in the discretion of the custodian, has the necessary skill and training to respond to the request.” Governor Sarah Huckabee Sanders indicated her support of Ray’s bill. Robert Steinbuch, a professor at the University of Arkansas at Little Rock William H. Bowen School of Law and a conservative columnist for the Arkansas Democrat-Gazette, described the bill as “literally the worst proposal I’ve seen for the Freedom of Information Act in the almost 20 years I have been in Arkansas.” HB1726 failed in committee on March 29, 2023.

One bill that effectively amended the state’s FOIA without advertising that fact was SB543 (later Act 883), introduced into the Arkansas Senate on March 29, 2023, by Sen. Kim Hammer of Benton (Saline County) and delivered to the governor approximately one week later. Section 1 of the law allows for the removal of a school board member for violations of state ethical guidelines, while Section 2 requires that the oath such school board members take include a pledge to abide by ethical guidelines. However, Section 3 increases the range of circumstances in which a school board may meet in executive section, outside the provisions of the FOIA, to include matters of litigation, settlement offers, contract disputes, and discussions of real property, in addition to allowing the superintendent and school district attorney to be present at such executive sessions.

On June 14, 2023, Attorney General Tim Griffin announced the creation of the Arkansas Freedom of Information Act Review Working Group, the purpose of which is to suggest changes to the law. However, the state legislature had, six years earlier, already created the Arkansas Freedom of Information Act Task Force through the passage of HB 2132, which became Act 923 with the signature of Gov. Hutchinson. The task force exists “for the purpose of reviewing, evaluating, and approving proposed amendments for the Freedom of Information Act of 1967.” In a July 9, 2023, editorial for the Arkansas Democrat-Gazette, Griffin defended his working group from criticism, including complaints that meetings of the group would not be open to the public, as is allowed under FOIA given the group’s status as advisory, rather than governing.

On September 8, 2023, Gov. Sanders announced that she was calling the Arkansas General Assembly into session, in part to expand exemptions to the FOIA relating to the governor’s security and past travel records, with the proposed bill, sponsored by Rep. David Ray (HB 1003), exempting records relating to the governor retroactively to January 1, 2022. In addition, the proposed bill would make policy-making records exempt. This followed a lawsuit by attorney Matt Campbell, who also manages the Blue Hog Report blog, seeking information about past travel by Sanders; the previous month, Campbell had reported how Jacob Oliva, the head of the Arkansas Department of Education, regularly reserved hotel rooms and plane tickets in amounts far in excess of what was allowed by Arkansas law, and his own examination of records relating to Sanders showed the governor apparently taking the state plane with her family for personal events. Of particular concern for many was a section of the proposed bill exempting records “prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission in anticipation of litigation or for use in pending litigation.” Law professor and columnist Steinbuch described this section as “the child molester protection act,” noting that Penn State University was able to keep allegations of sexual assault by Coach Jerry Sandusky from public scrutiny under just such an exemption. In response to the proposed legislation, the Arkansas Press Association issued a statement saying that the changes under consideration “will eliminate the ability to hold our government accountable by shielding processes that provide essential context for decisions that affect millions of Arkansans,” the county Republican committees of Pulaski and Saline counties expressed their own objections, and the Arkansas Freedom of Information Act Task Force voted unanimously to oppose Gov. Sanders’s proposed revision of the law.

Sanders’s attempt to revise the FOIA stalled on the first day of the special session when lawmakers of both political parties in the House of Representatives objected to suspending the normal rules in order to expedite the bill; in response, Rep. Ray and Senate President Pro Tem Bart Hester of Cave Springs (Benton County) filed identical versions of new legislation (HB 1009 and SB 7) on September 11, narrowing the exemption on “records revealing the deliberative process” to shield those records “reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department.” However, a contentious, five-hour hearing in Senate State Agencies and Governmental Relations Committee ended without a vote on September 12; that evening, Rep. Julie Mayberry of Hensley (Pulaski County) filed HB 1011, creating an exemption exclusively for security-related records “identifying or otherwise regarding the minor children of the Governor,” while Rep. Ray and Sen. Hester filed their own companion bills (HB 1012 and SB 10) offering a broader exemption for records (retroactive to June 2022) relating to security services provided to the governor and other state officials. Although Sanders later endorsed this narrower security exemption, her campaign that same day was sending out material describing the FOIA as “an outdated law… that is crushing our ability to defend these laws and defeat the Radical Left.” On September 13, the Senate overwhelmingly approved SB 10, while the House passed HB 1012 the following day, and Gov Sanders signed the bill into law (Act 7).

The following month, a group called the Arkansas Citizens for Transparency (ACT) announced that it would begin the process of placing the FOIA on the ballot in 2024 in order to make the law part of the state constitution and thus protect it from further changes by state lawmakers. The final draft of the proposed constitutional amendment was submitted to Attorney General Griffin on November 27, 2023. This was followed up by the submission of a proposed initiated act on December 4, 2023. Griffin rejected the ballot language for the proposed amendment on December 11, 2023, followed by his rejection of ballot language for the proposed initiated act on December 18, 2023. A second version of the initiated act was submitted on December 21, 2023. ACT submitted its four proposals for the ballot language of the constitutional amendment on December 20, 2023, but Griffin rejected each of them; the group promptly refiled ballot language with the contentious sections deleted. On January 23, 2024, ACT filed a lawsuit against Griffin over his refusal to certify any of the ballot language for the proposed amendment; the following day, he granted approval for the wording of the proposed constitutional amendment, but on January 25, 2024, he rejected wording yet again for the proposed initiated act, leading to ACT submitting a fourth draft immediately, for which Griffin granted approval on January 29, 2024. Consequently, ACT dropped its lawsuit against Griffin the following day.

The Office of the Arkansas Attorney General and the Arkansas Press Association jointly publish a handbook on the Arkansas FOIA.

For additional information:
Albarado, Sonny. “Arkansas Lawmakers Conceal a Weapon against Transparency in Rushed, Last-Minute Legislation.” Arkansas Advocate, June 30, 2023. https://arkansasadvocate.com/2023/06/30/arkansas-lawmakers-concealed-a-weapon-against-transparency-in-rushed-last-minute-legislation/ (accessed July 3, 2023).

Arkansas Freedom of Information Handbook. 18^th ed. Little Rock: Arkansas Press Association, 2017. Online at https://www.arkansaspress.org/page/foihandbook (accessed March 2, 2022).

Bowden, Bill. “House Passes Revamping of Meetings Law.” Arkansas Democrat-Gazette, March 31, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/31/foi-meeting-bill-passes-arkansas-house-heads-to/ (accessed March 31, 2023).

———. “‘Of a Quorum’ Bill Would Add 3 Words to Act.” Arkansas Democrat-Gazette, March 14, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/14/arkansas-house-bill-would-define-meeting-as/ (accessed March 14, 2023).

———. “Task Force: Record-Act Limits Bad.” Arkansas Democrat-Gazette, March 30, 2023, pp. 1A, 9A. Online at https://www.arkansasonline.com/news/2023/mar/29/foi-task-force-opposes-bills-to-weaken-the/ (accessed March 30, 2023).

Canfield, Jerry L. “To Meet or Not to Meet, That is the Question: An Analysis of the Meeting Requirement of the Arkansas Freedom of Information Act.” Arkansas Law Notes, May 2023. Online at https://scholarworks.uark.edu/arlnlaw/14 (accessed May 15, 2023).

Earley, Neal. “Act to Fortify Sunshine Law Refused Again.” Arkansas Democrat-Gazette, January 10, 2024, pp. 1A, 3A. Online at https://www.arkansasonline.com/news/2024/jan/09/proposed-ballot-language-for-act-to-strengthen/ (accessed January 10, 2024).

———. “AG Approves Ballot Wording on Records Law.” Arkansas Democrat-Gazette, January 30, 2024, pp. 1A, 5A. Online at https://www.arkansasonline.com/news/2024/jan/29/arkansas-attorney-general-oks-ballot-wording-for/ (accessed January 30, 2024).

———. “AG Rejects Sunshine Ballot Issue Language.” Arkansas Democrat-Gazette, December 12, 2023, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2023/dec/11/attorney-general-rejects-ballot-language-for-a/ (accessed December 12, 2023).

———. “Another Bill Filed to Amend Records Act.” Arkansas Democrat-Gazette, March 28, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/mar/28/rays-bill-would-amend-freedom-of-information-act/ (accessed March 28, 2023).

———. “Campaign to Protect Records Law Planned.” Arkansas Democrat-Gazette, September 18, 2023, pp. 1A, 9A. Online at https://www.arkansasonline.com/news/2023/sep/17/plan-underway-to-put-constitutional-amendment-on/ (accessed September 18, 2023).

———. “Court OK Sought for Proposal.” Arkansas Democrat-Gazette, January 24, 2024, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2024/jan/23/group-files-lawsuit-asking-arkansas-supreme-court/ (accessed January 24, 2024).

———. “Open Records Overhaul by Sanders Stalls.” Arkansas Democrat-Gazette, September 12, 2023, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2023/sep/12/sanders-plans-to-overhaul-the-states-freedom-of/ (accessed September 12, 2023).

———. “Proposed Easing of Meetings Law Fails Panel Vote.” Arkansas Democrat-Gazette, April 5, 2023, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2023/apr/05/bill-that-would-allow-elected-officials-to-meet/ (accessed April 5, 2023).

———. “Records-Law Proposal Rejected for Third Time.” Arkansas Democrat-Gazette, January 26, 2024, pp. 1A, 3A. Online at https://www.arkansasonline.com/news/2024/jan/25/wording-of-proposal-to-strengthen-arkansas/ (accessed January 26, 2024).

———. “Sanders Signs Bill to Modify ‘Sunshine’ Law.” Arkansas Democrat-Gazette, September 15, 2023, pp. 1A, 6A, 7A. Online at https://www.arkansasonline.com/news/2023/sep/15/sanders-signs-bill-to-modify-sunshine-law/ (accessed September 15, 2023).

———. “Senate, House Panel Advance Records Bills.” Arkansas Democrat-Gazette, September 14, 2023, pp. 1A, 6A. Online at https://www.arkansasonline.com/news/2023/sep/14/arkansas-senate-house-committee-advance-bills/ (accessed September 14, 2023).

———. “Sunshine Law Amendment’s Wording OK’d.” Arkansas Democrat-Gazette, January 25, 2024, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2024/jan/24/attorney-general-signs-off-on-language-for/ (accessed January 25, 2024).

———. “Sunshine Law Proposal Goes out to Public.” Arkansas Democrat-Gazette, October 12, 2023, pp. 1B, 5B. Online at https://www.arkansasonline.com/news/2023/oct/12/group-unveils-language-for-proposed-amendment/ (accessed October 12, 2023).

Earley, Neal, and Michael R. Wickline. “Sanders Eases Bid to Weaken Sunshine Law.” Arkansas Democrat-Gazette, September 13, 2023, pp. 1A, 6A. Online at https://www.arkansasonline.com/news/2023/sep/13/sanders-scales-back-plans-to-amend-states-freedom/ (accessed September 13, 2023).

Earley, Neal, and Will Langhorne. “Overhaul of Records Law in the Works for Session.” Arkansas Democrat-Gazette, September 9, 2023, pp. 1A, 3A. Online at https://www.arkansasonline.com/news/2023/sep/09/sanders-proposes-overhaul-to-arkansas-freedom-of/ (accessed September 11, 2023).

Ellis, Dale. “AG Receives Final Draft of Amendment.” Arkansas Democrat-Gazette, November 28, 2023, pp. 1B, 6B. Online at https://www.arkansasonline.com/news/2023/nov/28/foia-proponent-submit-draft-of-constitutional/ (accessed November 28, 2023).

———. “Bill to Narrow Records Act Rejected by House Panel.” Arkansas Democrat-Gazette, March 30, 2023, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2023/mar/30/bill-to-narrow-records-act-rejected-by-house-panel/ (accessed March 30, 2023).

———. “Proposal Submitted to Enshrine Sunshine Law.” Arkansas Democrat-Gazette, December 5, 2023, pp. 1B, 6B. Online at https://www.arkansasonline.com/news/2023/dec/04/group-submits-draft-proposal-of-amendment-to-add/ (accessed December 5, 2023).

“Overhaul of Records Law Draws GOP Opposition.” Arkansas Democrat-Gazette, September 11, 2023, pp. 1A, 4A. Online at https://www.arkansasonline.com/news/2023/sep/11/overhaul-of-records-law-draws-gop-opposition/ (accessed September 11, 2023).

Flaherty, Joseph. “Curb on Open Meetings Law Clears House.” Arkansas Democrat-Gazette, April 6, 2021, pp. 1B, 3B. Online at https://www.arkansasonline.com/news/2021/apr/06/curb-on-open-meetings-law-clears-house/ (accessed June 15, 2023).

“Information Bill Gets No ‘No’s’ in House Vote.” Arkansas Gazette, February 3, 1967, p. 2A.

Langhorne, Will. “AG Panel to Rethink Information Act.” Arkansas Democrat-Gazette, June 15, 2023, pp. 1B, 2B. Online at https://www.arkansasonline.com/news/2023/jun/15/ag-panel-to-rethink-information-act/ (accessed June 15, 2023).

“Senate Sends Open Meeting Bill to WR.” Arkansas Gazette, February 14, 1967, p. 10A.

Snyder, Josh. “Law on Meetings Slips by Watchdogs.” Arkansas Democrat-Gazette, July 23, 2023, pp. 1A, 13A. Online at https://www.arkansasonline.com/news/2023/jul/23/law-expanding-executive-session-privileges-for/ (accessed July 24, 2023).

Tilley, Michael. “Gov. Sanders: Tax Cuts, Tax Credit, and FOIA Changes on Tap for Special Session.” Talk Business & Politics, September 8, 2023. https://talkbusiness.net/2023/09/gov-sanders-tax-cuts-tax-credits-and-foia-changes-on-tap-for-special-session/ (accessed September 8, 2023).

Watkins, John J., Richard J. Peltz-Steele, and Robert Steinbuch. Arkansas Freedom of Information Act. 6^th ed. Fayetteville: University of Arkansas Press, 2017.

Wickline, Michael R. “AG Gets 2nd Try at Stronger Law.” Arkansas Democrat-Gazette, December 22, 2023, pp. 1A, 7A. Online at https://www.arkansasonline.com/news/2023/dec/21/committee-submits-second-version-of-a-proposed/ (accessed December 22, 2023).

———. “Griffin Rejects 4 Proposals of Sunshine Law.” Arkansas Democrat-Gazette, January 9, 2024, pp. 1A, 6A. Online at https://www.arkansasonline.com/news/2024/jan/08/griffin-rejects-ballot-language-proposals-for/ (accessed January 9, 2024).

———. “Griffin Rejects Sunshine Act Ballot Wording.” Arkansas Democrat-Gazette, December 19, 2023, pp. 1A, 5A. Online at https://www.arkansasonline.com/news/2023/dec/18/arkansas-attorney-general-rejects-proposed-ballot/ (accessed December 19, 2023).

Tom Larimer
Arkansas Press Association