Mr. Don Flegal Director, Department of Human Resources City of Little Rock 500 W. Markham, Ste. 130W Little Rock, AR 72201-1428
Dear Mr. Flegal:
You have requested an Attorney General opinion, pursuant to A.C.A. §25-19-105(c)(3)(B), a provision of the Freedom of Information Act (FOIA), concerning a request that has been received by the City of Little Rock.
You state that the City of Little Rock received a request for records pertaining to nineteen listed items of information concerning the City's assessment procedures. You have provided me with a copy of the request and have indicated that the City does not maintain records that would be responsive to many of the listed items of information. You have also expressed a concern that some of the information and materials that have been requested are not relevant to any legal proceeding because of their age. I note from my review of this list of requests that many of them do appear to ask for a compilation of information, rather than for already-existing documents. You state that you would have to create records to respond to these requests. Accordingly, I understand you to have determined that you will not provide any records in response to the request.
I am directed by law to issue my opinion as to whether your determination, as custodian of the records, regarding this request for records, is consistent with the FOIA. A.C.A. § 25-19-105(c)(3)(B).
It is my opinion that if you have records containing the requested information, those records must be made available to the requester if they are not exempt from disclosure. However, it is also my opinion that to the extent that you are correct that no records exist containing the requested information, and that records would have to be created to compile the requested information, your determination is correct. The FOIA requires that public records be made available; it does not require public entities to answer interrogatories or to otherwise provide raw information. Moreover, the FOIA does not require you to compile and create records that do not already exist. See McMahan v. Board ofTrustees, 255 Ark. 108, 499 S.W.2d 56 (1973); Ops. Att'y Gen. Nos.2000-119; 99-399; 98-075; 97-048; Watkins, The Arkansas Freedom ofInformation Act 81-2 (3rd ed. 1998), and Attorney General Opinions cited therein. It is therefore my opinion that you are not required to respond to any of the listed requests that does not ask for an already-existing document.
However, I note that several of the listed requests do appear to ask for actual documents, rather than for a compilation of information, and should thus be assessed separately. I will address and evaluate each such request.
Request No. 4 asks for: "Copy of all materials used to train selected assessors, at all ranks assessed." If you maintain documents that are responsive to this request, they must be made available to the requestor. Such documents do not fall within any exemption from disclosure.
Request No. 8 asks for: "All benchmarks, answer sheets, scoring guides, and assessment exercises used in the last ten years." Again, if you maintain documents that are responsive to this request, they must be made available to the requestor. They are not exempt from disclosure. Even if it is true that these records and materials are not relevant to any legal proceeding because of their age, this fact does not constitute a basis, under the FOIA or any other law, for exemption from disclosure.
Request No. 10 asks for: "Feedback on all candidates for the last ten years (All ranks)." Any records you maintain that are responsive to this request can (and should) be made available only if this can be done in a way that does not reveal the identity of any candidate. See Young v.Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Op. Att'y Gen. No. 2000-119. For example, the records can be provided with the names and other personal identifiers of the candidates redacted from the records, unless it would be possible, even with these items redacted, to ascertain the candidates' identities. See Ops. Att'y Gen. Nos. 2000-226; 217.
Request No. 16 asks for: "Copies to all written exams, for all ranks, for the past ten years. Copies to all challenges to those tests, Challenges which were approved for test credit and those which were denied." If you maintain these records, and they can be provided in a form that does not disclose the identity of any candidate, they must be made available. Id.
The remaining requests do appear to ask for compilations of raw information. As indicated previously, the FOIA does not require you to respond to these requests or create documents that respond to them.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:SA/cyh