dissenting. The Arkansas Freedom of Information Act (“FOIA”) entitles “any citizen of the State of Arkansas” to inspect and copy public records not covered by an exemption. Ark. Code Ann. § 25-19-105(a) (Repl. 1996)(emphasis added). “Any citizen denied the rights granted to him by this chapter may appeal immediately from the denial” to the appropriate circuit court. Ark. Code Ann. § 25-19-107(a) (Repl. 1996)(emphasis added). The Attorney General, in his official capacity, requested access to documents pursuant to the FOIA, and he appealed the denial of his request to the Pulaski County Circuit Court. The Circuit Court dismissed the appeal on the ground that the Attorney General lacked standing to proceed under the FOIA because he was not a “citizen” within the meaning of the above statutes.
The Circuit Court correctly determined the issue, and its ruling dismissing the Attorney General’s appeal should be affirmed. Although “[w]e liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner,” Arkansas Dep’t of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 456, 970 S.W.2d 217, 219 (1998), our task is to interpret the statute by giving effect to the intent of the General Assembly as expressed in the words of the law. Sebastian County Chapter of the American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).
The FOIA is important because it “let[s] citizens know ‘what their government is up to.’ ” Stilley v. McBride, 332 Ark. 306, 312, 965 S.W.2d 125, 127 (1998)(quoting Department of Defense v. FLRA, 510 U.S. 487, 497 (1994))(emphasis added). “[O]penness in government is an essential ingredient in a democratic society,” and the FOIA clearly furthers that objective. Arkansas Gazette Co. v. Goodwin, 304 Ark. 204, 207, 801 S.W.2d 284, 288 (1990)(Turner, J., concurring).
The text of the Freedom of Information Act, however, reveals no intention on the part of the General Assembly to include a governmental officer, acting in his official capacity, within the term “citizen,” as that term is used in the FOIA. It is undisputed that the Attorney General used the resources of his office to proceed in this action. It has been pursued by lawyers who are in the employ of the Attorney General and paid by the State. It very clearly is an action by the Office of the Attorney General and not by a “citizen” as contemplated by the FOIA.
In support of its position that the Attorney General had standing to proceed under the Arkansas Freedom of Information Act, the majority cites cases that interpret the federal Freedom of Information Act. The majority says that the federal cases are “instructive” on the standing issue. They are, however, entirely inapposite.
In Commonwealth of Massachusetts Dep’t of Public Welfare v. United States Dep’t of Health & Human Services, 727 F. Supp. 35 (D. Mass. 1989), the District Court ordered a federal agency to disclose information requested by a state agency pursuant to the federal Freedom of Information Act. The federal agency, however, did not assert that the state agency lacked standing to proceed under the statute, and thus the District Court made no holding on the point. Likewise, the defendant in State of Texas v. Interstate Commerce Comm’n, 935 F.2d 728 (5th Cir. 1991), did not argue that the State of Texas lacked standing to request information pursuant to the federal FOIA, and the Fifth Circuit did not address the issue. In Environmental Protection Agency v. Mink, 410 U.S. 73, 75 n.2 (1972), the United States Supreme Court addressed a federal FOIA claim brought by Members of Congress against a federal agency and specifically noted that the question of whether the Members could proceed “in their official capacities as Members of Congress” was not before the Court.
Even if the federal cases cited by the majority supported the view that governmental agencies or officers have standing to assert federal FOIA claims, the statute interpreted by those cases, 5 U.S.C. § 552(a) (1994), provides for the release of information “to the public,” not merely to “any citizen.” Any case suggesting that governmental agencies or officers have standing to proceed under language conferring a right to information on “the public” simply has no bearing on whether such parties may proceed under language conferring a right to information only on “citizens.” The Arkansas Freedom of Information Act confers a right to information on “any citizen,” not “the public.” The Attorney General, as a representative of “the public,” would likely have a credible argument that he had standing under the language used in the federal statute. Under the more limited language in the Arkansas statute, however, the Attorney General clearly is not a “citizen” and thus lacks standing to proceed.
This conclusion is not contrary to Arkansas Hwy. and Transp. Dep’t v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988), or Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975), which are cited in the majority and concurring opinions. In Hope Brick Works, we held that a corporation doing business in Arkansas is a “citizen” with standing to request records pursuant to the FOIA. In Arkansas Gazette Co., we held that the Arkansas Gazette Company (an Arkansas corporation) and one of its reporters (an Arkansas resident) had standing to pursue a claim under the FOIA that they were entitled to attend meetings of committees of the University of Arkansas Board of Trustees.
Neither case supports the conclusion of the majority and concurring opinions that a governmental office such as the Office of the Attorney General is a “citizen” with standing either to request information pursuant to Ark. Code Ann. § 25-19-105(a), or to appeal the denial of such a request pursuant to Ark. Code Ann. § 25-19-107(a). The corporations and the newspaper reporter involved in Hope Brick Works and Arkansas Gazette Co. were purely private actors, and thus those cases supply no basis for holding that a state office is a “citizen” with standing to proceed under the FOIA.
The majority and concurring opinions also allude to statements in Hope Brick Works and Arkansas Gazette Co. to the effect that “‘anyone’ who requests information [under the FOIA] is entitled to it” (emphasis added). The statement orginates from our decision in the Arkansas Gazette Co. case, which concerned whether newspaper reporters were entitled to attend “public meetings” at the University of Arkansas. Quoting from an FOIA provision now codified at Ark. Code Ann. § 25-19-106(b)(l), we said that “[t]he time and place of each regular meeting shall be furnished to anyone who requests the information.” Arkansas Gazette Co. v. Pickens, 258 Ark. at 77, 522 S.W.2d at 355. The provision at issue in the Arkansas Gazette Co. case has no application here, as the Attorney General does not seek to attend “open public meetings” pursuant to § 25-19-106. Rather, he requests the disclosure of documents pursuant to provisions that confer standing only upon a “citizen.”
Finally, the concurring opinion cites the discussion of the Hope Brick Works case in a leading treatise on the Arkansas Freedom of Information Act. See John J. Watkins, The Arkansas Freedom of Information Act 75-78, 332-33 (3d ed. 1998). Nothing in Professor Watkins’s treatise supports the concurring opinion’s statement that Hope Brick Works “compels” the conclusion that the Office of the Attorney General is a “citizen” under the FOIA. In fact, the treatise quotes from an opinion of the Attorney General to the effect that the FOIA “does not address who may or may not review documents by virtue of an official position.” Id. at 78 (quoting Ark. Op. Att’y Gen. No. 89-330). The Attorney General repeated that observation in at least two other opinions. See Ark. Op. Att’y Gen. Nos. 91-323 and 96-386. It appears that the Attorney General has since rethought his position on this issue.
No doubt, a laudable aim of Arkansas’s Freedom of Information Act is to provide citizens with the means of learning “what their government is up to,” Stilley v. McBride, supra, but the majority’s decision in this case will provide the government with the means of learning what the government is “up to,” a novel suggestion, no matter what the context. If that is to be the law, the General Assembly should enact it, not this Court. Nothing in the FOIA suggests that the General Assembly intended any such result.
I respectfully dissent.
Imber., J., joins in this opinion.