Mr. A. Watson Bell City Attorney City of Kensett Kensett, AR 72082
Dear Mr. Bell:
You have requested an opinion of this office under the authority granted by the Arkansas Freedom of Information Act, specifically, A.C.A. 25-19-105 [(c)(3)(B)]. You wish to know if the release of information contained in a municipal police officer's personnel file relative to his or her certification would constitute a clearly unwarranted invasion of personal privacy as prohibited by the Act. You also wish to know if the City of Kensett is required to retrieve records currently in storage for public inspection and copying.
In answer to your first question, I do not believe releasing information relative to a police officer's certification status would rise to the level of a violation of privacy. This office has previously opined that to qualify for the privacy exemption of the FOIA, the information in question must be of an intimate nature. Opinion No. 87-115. Records relating to a state imposed standard of training and education cannot be considered "intimate information."
In answer to your second question, A.C.A. 25-19-105 (e) specifically addresses your question.
If a public record is in active use or storage and, therefore, not available at the time a citizen asks to examine it, the custodian shall certify this fact in writing to the applicant and set a date and hour within three (3) working days, at which time the record will be available for the exercise of the right given by this chapter.
The above language is clear in that it requires a custodian of the record to release a record, even if it is in storage. This task is not discretionary and must be completed within the time specified by the Act.
In your request you make reference to the city's financial obligation relative to retrieving the records in question and the costs associated with copying the records. I believe that the city would be required to absorb the cost of retrieving the records from storage since passing along this cost could arguably restrict a citizens access to a public record, which is prohibited by the Act. The Arkansas Supreme Court has never reviewed the issue of charging for copies made under the FOIA. However, at least one circuit court and this office have in the past recognized that a 25¢ per page charge is reasonable and would not restrict access to public records as prohibited by the Act.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.