The Honorable Stuart Vess State Representative 6717 Pontiac Drive North Little Rock, AR 72116-5232
Dear Representative Vess:
This is in response to your request for an opinion on the following question regarding A.C.A. § 25-19-105(c), which is part of the Arkansas Freedom of Information Act ("FOIA"), codified at A.C.A. §§ 25-19-101 etseq. (Repl. 1996 and Supp 1997):
If the custodian of the personnel records is unable to contact the subject of the records within the initial 24-hour period after the request as outlined in paragraph (c)(3)(A), at that point shall the custodian of the records disclose them to the person making the request to examine the files?
RESPONSE
Please note that I have enclosed a copy of Attorney General Opinion97-008, which addresses this question concerning the release of "personnel or evaluation records" (A.C.A. § 25-19-105(c)(2) and (3)) under the FOIA. I agree with the conclusion reached therein that a 72-hour period is a reasonable time for the custodian to wait, from the time the request for records is first received, before releasing the records if notification of the subject of the records is not accomplished within the first 24-hour notification period and must therefore be made by overnight mail, and if no request for an Attorney General's opinion is made.1
In response to your specific question, therefore, it is my opinion that the records should not be released immediately after the initial 24-hour period. Rather, if no request for an Attorney General's opinion has been made, the custodian should wait an additional 48 hours (72 hours from receipt of the FOIA request).
I refer you to Opinion 97-008 for the analysis employed in reaching this conclusion, which balances the openness policy of the FOIA and the interests of persons whose records have been requested. I would also note, as was stated in Opinion 97-008, that the FOIA does not require anyone to notify the custodian of the records that an Attorney General's opinion has been sought; and it would be in the best interest of the custodian to determine whether in fact a request has been made before proceeding to release the records. Op. Att'y Gen. 97-008 at 12.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:EAW/cyh
Enclosure
1 As pointed out in Opinion 97-008, if a request for an Attorney General's opinion is presented, the FOIA clearly delineates the waiting period (three working days). Op. 99-008 at n. 2, citing A.C.A. §25-19-105(c)(3)(B). As also noted therein, the custodian's waiting period may also be affected by judicial review, pursuant to A.C.A. §25-19-105(c)(3)(C), of the custodian's or the Attorney General's decision, or by the fact that the requested records are in active use or storage (A.C.A. § 25-19-105(e)). Op. Att'y Gen. 97-008 at n. 3.