Opinion No.

The Honorable Sue Madison State Representative 573 Rockcliff Road Fayetteville, AR 72701-3809

Dear Representative Madison:

This is in response to your request for an opinion on the following questions concerning access to public records through a web site:

1. Does the FOIA require that the records on Washington County's web site be viewed free of charge?

2. Does the FOIA require that these records be included on the web site?

You state that Washington County has a web site which is accessed free of charge, but the assessor has elected to not include property records on the free site.

RESPONSE

Question 1: Does the FOIA require that the records on WashingtonCounty's web site be viewed free of charge?

The FOIA cannot, in my opinion, reasonably be construed to address any questions regarding permissible charges in connection with Internet access to public records. The FOIA was passed in 1967. Given the fact that this means of access to public records was nonexistent in 1967, it seems clear that the FOIA is silent on permissible related charges. I must therefore disagree with the suggestion in a previous Attorney General opinion that the FOIA may be construed to apply to any fee that is imposed once an agency decides to put its information "on-line." Op. Att'y Gen. 97-115. It is my opinion that the FOIA simply does not reach this issue.

I am therefore unable to opine, as a general matter, on the legality of any charges for viewing public records on-line. The question of whether some other basis of authority currently exists for charges in this regard may require a case-by-case review, taking into account the particular records in question as well as the custodian thereof. See, e.g., A.C.A. § 21-6-401(d) (Repl. 1996) (authorizing a "reasonable fee," to be established by the Arkansas Supreme Court, for electronic access to court decisions and other court records.) It should be noted, however, that this undoubtedly is an issue that will be addressed by the Electronic Records Study Commission created under Act 1060 of 1999.

Question 2: Does the FOIA require that these records be includedon the web site?

The answer to this question is, in my opinion, "no." I agree with the conclusion in Opinion 97-115 that the FOIA cannot reasonably be construed to require on-line access to computerized information.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:EAW/cyh