The Honorable Tom Cooper Prosecuting Attorney Ninth Judicial District — West Little River County Courthouse Post Office Box 214 Ashdown, Arkansas 71822
Dear Mr. Cooper:
This is in response to your request for an opinion concerning the following question:
If an employee is required by their employer to take a hearing test or any physical exam which in turn is made a part of their employee file, is the employer, under the Arkansas Freedom of Information Act or any law, required to give the employee a copy of these exam results if the employee makes a proper request?
In my opinion, A.C.A. § 11-3-203 (Repl. 1996) requires that a copy of the examiner's report be furnished to the employee. Arkansas Code Annotated § 11-3-203(a)(1) provides:
It shall be unlawful for any person, partnership, association, or corporation, either for himself or in a representative or fiduciary capacity, to require any employee or applicant for employment, as a condition of employment or continued employment, to submit to or take a physical or medical examination unless the examination is provided at no cost to the employee or applicant for employment and unless a true and correct copy, either original or duplicate original, of the examiner's report of the examination is furnished free of charge to the applicant or employee.
With regard to the Arkansas Freedom of Information Act (FOIA), it has been held that the FOIA applies to those private (i.e., nongovernmental) organizations that receive public funds and carry on public business or are otherwise intertwined with the activities of government. See City ofFayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); see also Op. Att'y Gen. Nos. 97-148, 96-116, 95-353, 94-023. It is, however, my understanding that the employer referred to in your question is a private company that does not receive public funding. Thus, based upon the facts presented, the FOIA is not applicable.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Warren T. Readnour.
Sincerely,
WINSTON BRYANT Attorney General
WB:WTR/cyh