The Honorable Mike Everett State Senator 412 Broadway Marked Tree, AR 72365
Dear Senator Everett:
This is in response to your request for an opinion on the applicability of Arkansas' Freedom of Information Act ("FOIA"), codified as A.C.A. §§ 25-19-101—105 (Repl. 1992), to a referendum petition filed with the West Memphis City Clerk's office that has not yet been certified by the city clerk. In my opinion, this referendum petition is subject to the "FOIA."
Generally speaking, all public records are available for inspection and copying under the FOIA. City of Fayetteville v.Rose, 294 Ark. 468, 743 S.W.2d 817 (1988). For a record to be subject to the FOIA and available to the public, it must be possessed by an entity covered by the act, fall within this act's definition of a public record, and not be exempted by the act or other state statute. Legislative Joint Auditing Comm'n. v.Woolsey, 291 Ark. 89, 722 S.W.2d 581 (1987).
Arkansas Code Annotated § 25-19-103(1) (Repl. 1992), defines "public records" and indicates what governmental agencies, whether state or local in nature, are subject to the FOIA:
(1) "Public records" means writings, recorded sounds, films, tapes, or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.
Even if, however, a particular record qualifies as "public" under this definition, it may nonetheless be unavailable for public inspection. Section 25-19-105 of the Arkansas Code (Repl. 1992) recognizes specific exemptions to the FOIA's general rule of disclosure and also incorporates by reference exemptions found in other statutes.
A review of Section 25-19-105 and the other Arkansas statutes reveals that a local referendum petition filed with the city clerk's office, certified or uncertified, is a "public record" subject to the FOIA. Such petitions, in my opinion, fall within the definition of "public records" set out at A.C.A. §25-19-103(1), and are not exempted by the act or any other state law.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General T. Jeff Vining.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh