dissenting. In declaring a personal tice, private bank account a “public record,” the majority opinion has created a very dangerous precedent. Therefore, I dissent from that holding. This court unquestionably must give a liberal construction of the Freedom of Information Act, Ark. Code Ann. § 25-19-101 et seq. (Repl. 2002 & Supp. 2003), to accomplish its “broad and laudable purpose that public business be performed in an open and public manner.” See Arkansas Dep’t of Health v. Westark Christian Action Council, 322 Ark. 440, 910 S.W.2d 199 (1995). However, with all due respect to the majority, this court stretches the FOIA well beyond its terms when it holds a personal check to be a “public record.”
Although the majority succinctly states the facts of this case, it fails to discuss or describe the testimony offered at the hearing on appellee Sam Perroni’s FOIA request. At that hearing, Perroni’s law partner, Patrick James, made a number of telling comments. For instance, James stated that he and Perroni pursued the FOIA complaint because they “were not satisfied with the documents and [Judge Fox’s] general response to [them] and response to [their] FOI request.” Specifically, James said, he and Perroni “wanted documentation concerning the source of funds. . . . [I]f there were records from the Pulaski County Government, I would expect there to be some type of record.”
Without citing authority, James repeatedly asserted that it was his “belief’ and “position” that the personal check of Judge Fox’s law clerk, David Eanes, constituted a public record. However, he conceded that it was accurate to say that the FOIA did not require a public official to create a document that does not exist. He further stated that he was “after the source of funds and any checks. ... I didn’t know if it was a check from the county. I didn’t know if there were vouchers there. I didn’t know if there were personal checks at the time. I did believe and I still believe . . . that there are public records which would evidence these transactions which occurred.” James -agreed, though, that after having the county attorney search her records, there were “no vouchers in process” with respect to any reimbursement request from Judge Fox.
Judge Fox testified that there were “no documents which would reflect the source of the funds expended on these documents,” because “none exist.” Judge Fox stated that he gave Eanes $20 in cash and asked him to go to the federal court and get whatever documents there were. When Eanes came back with the receipts, showing that it had cost $55.20 to get the records, Judge Fox gave him another $35.20 in cash and coin. This money, the judge stated, was “technically . . . not Pulaski County’s money [because Fox had] not yet submitted a reimbursement voucher for it.” He also pointed out that he had another $35 reimbursement that he had not yet submitted, and that he did not fill out the reimbursement voucher because he had not had time. Fie denied having any purpose to try to conceal the expenditure, stating that he intended “at some point [to] submit a reimbursement voucher to the County.” Judge Fox stated that he did not bring any documents to the hearing in response to the subpoena duces tecum because “none exist other than what I have already provided.” On cross-examination, Judge Fox stated that it was his view that “the source of funds as of today and as of the date [of] the FOI request, was my wallet.” The judge further stated that he did not believe that he had the right to direct his law clerk to turn over any cancelled checks that had been written on Eanes’s personal bank account.
For his part, Eanes testified that he believed that Judge Fox purchased the documents from the federal court file. He said, “Out of expediency, I wrote a check, but I was immediately reimbursed for it in cash.” On cross-examination, he reiterated that the “source of funds . . . for those purchases was the Judge’s payment. Cash. I didn’t keep a photocopy of the cash and coin that Judge Fox gave me. The only thing I had was a receipt, and I turned that over to him.”
The question here is whether, under Ark. Code Ann. § 25-19-105(a) (Repl. 2002),1 Eanes’s cancelled check is a “writing” that is “required by law to be kept or otherwise kept,” which “constitute^] a record of the performance . . . of official functions which are or should be carried out by a public official or employee[.]” In interpreting the FOIA, this court has remarked on the need for a balancing of interests to give effect to the intent of the General Assembly, stating that we do so with a common sense approach. Sebastian County Chap., Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993) (emphasis added); see also Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). Here, obviously, Eanes’s check is a “writing,” but equally obviously, his check is not “required by law to be kept,” because it is a personal check, drawn on Eanes’s personal bank account. These facts are not disputed.
Thus, the issue is reduced to whether Eanes’s cancelled check was something “otherwise kept and which constitute^] a record of the performance ... of official functions which are or should be carried out by a public official or employee [.]” In his brief, Judge Fox noted that the FOIA requests were directed at him, and he did not “keep” Eanes’s cancelled check. Fox further averred that he never “possessed, saw, or even asked to see” the check. Instead, Eanes’s bank “kept” the check. Additionally, the bank is not holding Eanes’s check forjudge Fox, nor is it keeping the check as a record of the “performance of official functions which are . . . carried out by a public . . . employee.” The bank is simply keeping Eanes’s check as part of its normal business operations. The statute requires that the writing be something that is “otherwise kept and which constitutes a record.” This phrase is in the conjunctive. While the bank may well “otherwise keep” the check, it is not keeping it because it constitutes a record of acts by a public employee. Therefore, David Eanes’s personal check does not fit the definition of a “public record.”
Also supporting the conclusion that the personal check was not “otherwise kept,” in the sense intended by the statute, is a comment made by this court in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989). There, Depoyster sought the voting records of the Arkansas Athletic Association (“AAA”); Depoyster, the superintendent of the Newark School District, was trying to find out how the AAA had voted on the site selections for high school basketball tournaments. In this case, the AAA had taken a vote by using unsigned written ballots that were discarded after the vote. Depoyster filed a FOIA complaint, asking the trial court to declare that the AAA’s practices violated the Act. The trial court declined to do so, but this court reversed on appeal. After examining the purpose of the FOIA, this court noted that the Act declares that “all writings or data compilations in any form required by law to be kept or otherwise kept” are “public records.” This court concluded “[t]he vote slips at issue, being records generally or otherwise kept by the AAA, therefore constituted public records which should have been retained.” Depoyster, 298 Ark. at 207 (emphasis added).
The Depoyster court focused on the fact that the records had been retained by the AAA, which was the party to whom the FOIA request had been directed. The majority attempts to contrast Depoyster with Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995), by suggesting that Swaney holds that there need be no nexus between the person to whom the FOIA request is directed and the keeper of the document. Plowever, in Swaney, there was never a question regarding whether the documents at issue were public records, as there is here. The Swaney court stated that “the only issue is who is to be responsible for obtaining production of the records from [the private accounting firm], the public agency (ADFA), or the private individual seeking disclosure of the records.” Swaney, 320 Ark. at 654 (emphasis added). Thus, the court in Swaney was not called upon to interpret the phrase “otherwise kept” and utilize that interpretation to decide if the documents were public records, as we must do here.
Here, Judge Fox was the person to whom the FOIA request was directed; obviously, he is neither required by law to keep, nor does Judge Fox ’’otherwise keep” Eanes’s cancelled checks. For the phrase “otherwise kept” to have any meaning within the context and purpose of the FOIA,2 it cannot be read as broadly as the majority suggests. Instead, under Depoyster, it is clear that there must be some nexus or connection between the person to whom the FOIA request is directed and the keeping of the document. Were it to be otherwise, any document, in any place, “kept” for any reason — or for no reason at all — could be subject to the FOIA . . . and subject to abuse.
Further, Judge Fox argued that the “presumption” that the check is a public record does not apply. This references the portion of § 25-19-103(5)(A) that states that “[a] 11 records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.” Eanes testified that the check in question was not written off of a business account, but instead is his and his wife’s personal joint account. Common sense makes it clear that a personal check is not a “record maintained ... by a public employee[ ] within the scope of [his] employment.”
Interestingly, Perroni and James argue that, “[b]ut for the check created and conveyed to the federal court clerk, [Judge Fox’s] law clerk would not have received the certified documents[.] . . . Accordingly, documents. . . which reflect the source of funds for that purchase' plainly fall within the definition of ‘public records’[.]” This contention makes no sense. Consider, for example, what would have happened if Eanes had had enough cash in his pocket to cover the extra $35.20, and did not have to write a check. Would Perroni then demand a photocopy of that cash? It appears that what happened here is that Perroni and James learned Judge Fox had not yet made a request for reimbursement with the county, and they misdirected their attention to something they thought they could physically lay their hands on — the check. Plowever, the check is not a “public record,” and the trial court misconstrued the FOIA in concluding that it was.
Dickey, C.J., and Corbin, J., join this dissent.Section 25-19-105(a) reads as follows:
“Public records” means writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, 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 oficial 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.
(Emphasis added.)
It is the purpose of the Freedom of Information Act to ensure “that the public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy....” Ark. Code Ann. § 25-19-102 (Repl. 2002).