The Honorable Albert "Tom" Collier State Representative 2713 Ivy Newport, AR 72112
Dear Representative Collier:
This is in response to your request for an opinion regarding the Freedom of Information Act ("FOIA") which is codified at A.C.A.25-19-101, et seq. Your specific questions are restated as follows:
1. Are the daily water logs maintained by a municipality subject to public inspection and copying?
2. Can a custodian of the records charge a requestor a fee for the time spent satisfying a FOIA request?
3. Can a custodian of the records require a requestor to supply his own photocopying machine to exercise the right to copy a public record?
I believe that the answer to your first question is, generally, "yes".
Section 25-19-103(1) states in part that "[a]ll records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records." Clearly, then, the daily logs maintained by the municipal clerk are public records. Section 25-19-105(a) (Supp. 1987) states: "Except as otherwise specifically provided by this section or by laws specifically enacted to provide, otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.
The next issue to be addressed is whether the records qualify for any of the exemptions from disclosure found in the foregoing section 25-19-105. Again, the plan language of the FOIA clearly indicates that the information contained in the log books does not meet the criteria necessary for protection from public inspection and copying. I am attaching for your examination a copy of the Code provision which lists the exemptions.
The answer to your second question is, in my opinion, "no". Complying with requests for public records is a statutory duty of a custodian of the records. A public employee is paid a salary for performing duties set forth by law. Charging the requestor of a public record a fee for the performance of a required duty is, in my opinion, not permissible.
You have asked, finally, whether a custodian of a record can require a requestor to supply his own photocopying machine to exercise the right to copy a public record. I believe that the answer to this question is also "no".
The FOIA guarantees the right to inspect and copy public records. See A.C.A. 25-19-105. If the effect of requiring each requestor to supply his or her own copying device prevents the exercise of the right to copy a record, then the requirement would be inconsistent with the Act. The alternative, then, would be to allow access to an office copier for a fee.
The FOIA itself is silent on the issue of charging a fee for supplying copies of public records to requestors. However, it has been the longstanding policy of this office that a custodian may charge a reasonable fee for photocopies and other forms of record reproduction. This fee should not, however, exceed actual costs.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.