The Arkansas Freedom of Information Act is a tool that the public may use to monitor the inner-workings of governmental bodies. It’s a tool we have to use fairly often in the news industry – while I prefer to use it as a last resort to gain information pertinent to a story, it is a necessity to have not just in order to have a free press, but an informed public.
I’ve sent out several FOIA requests in the last year – probably more than in my combined six years in the news industry before then. I’d like to dedicate this space to address some common issues we see when we file those requests, and when the information returned isn’t always what it should be.
Who’s subject to FOIA?
The FOIA is enforced against public agencies, such as city offices, county departments and school districts. It applies to memos, emails, minutes, records, notes and in some cases, even text exchanges regarding public business. There are some exemptions, such as personnel files in a school district, school expulsion and disciplinary hearings, and active investigations by a law agency.
One issue we’ve seen is when sending records requests to multiple departments within a government body, and the assumption that not every department has to produce the record if one already produces it (for example, if Department A produces an email that Department B is also in possession of, Department B must also submit that record – we can handle duplicates). I’ve seen instances recently in which a department was named in a delivery line of an email from someone else who submitted their records, but said they had none. This is a violation.
Additionally, once an entity makes a decision, that decision is matter of public record. It’s understandable that an agency or board would wish to inform staff of a situation prior to notifying the public, but that’s not entirely lawful. As Arkansas Press Association Attorney John Tull said, “once [information] is conveyed anywhere, it should certainly be conveyed to the [public].”
How long does an agency have to respond to an FOIA request?
If the records are in storage, an entity has 72 hours to respond to the request and provide the requested records, within reason. Otherwise, if the records are readily available upon request, they must be turned over immediately.
What can and can’t be discussed in executive session?
Executive sessions are private meetings among governmental bodies to discuss issues such as personnel and discipline. Neither the public nor the press are allowed inside these executive sessions, nor are notes taken during them subject to the FOIA.
For example, the Huntsville School Board has entered executive session several times over recent months to discuss the filling of the district’s superintendent position. Simple discussions – who they do and don’t like, pros and cons of the applicants, etc. – are allowed to be discussed in these sessions. However, a vote may not be taken, whether that vote is formal or informal.
“The purpose of the executive session is to be fair to the people who have either applied for the job, or in other instances people who are being considered for discipline, and as I understand it, the exemption is to allow sort of a discussion on that among the board members in order to protect that person until an action is taken,” Tull said. “But an actual vote cannot take place in the executive session. They can deliberate ... but you shouldn’t take a poll, and you can’t take a final vote.
“The actual discussion leading up to the vote should take place in the open meeting.”
The Arkansas Freedom of Information Act is a vital tool used to keep our elected officials transparent. Our tax dollars are spent by our elected officials to serve our needs, and it’s only just that we have a window into how they’re operating. If anyone has any questions about how the Freedom of Information Act works, I encourage you to send them to email@example.com – I may not have the answer, but we have resources here to get those answers, and as always, feel free to send us any concerns or story ideas you’d like us to look into.