Katherine Shurlds, FOIArkansas Project

Arkansas’ Freedom of Information Act is superior in some ways when compared to similar laws in surrounding states.

It is broader than laws in other states, for example, and it allows better citizen access to government records than most.

On the downside, Arkansas is one of only two in the region that makes its exemptions mandatory, taking discretion away from public bodies.

A comparison of open records laws in Mississippi, Missouri, Oklahoma, Tennessee, Texas and Louisiana was based on language, court cases, interpretations of the acts and opinions by attorneys general.

Who can request records under the various open records laws?

“Any citizen of the State of Arkansas” may ask to inspect the state’s public records. Tennessee requires state citizenship. In the other states, “any person” may ask to see the state’s records.

For the most part, the FOI laws of the seven states do not require the person making the request to reveal why he or she is requesting the record. Oklahoma makes an exception for requests with a commercial purpose, when the fees that the public body can charge for making the record available may be affected.

In Arkansas, records of a public official or employee and a governmental agency are covered by the FOIA. Any records that are “required by law to be kept or otherwise kept” that “constitute a record of the performance or lack of performance of official functions” are public, as well as all records “maintained in public offices or by public employees within the scope of their employment.”

There are exceptions — including the working papers of the state’s governor, attorney general, Supreme Court justices, and legislators. Also exempt are open investigative files of law enforcement agencies, some personnel records, and some documents related to economic development efforts that might reveal competitive information about private businesses.

An attorney general’s opinion of Mississippi’s law finds it much more restrictive. It does not give access to the records of “appointed or elected public officials or their employees.” In the same vein, Louisiana does not allow access to the records “in the custody or control” of the governor and which “are used in the discharge of his duties.”

Tennessee’s executive branch is allowed to keep secret any “papers relating immediately to the executive department, and, in the governor’s judgment, requiring secrecy.”

The Arkansas attorney general has said that advisory boards and committees are subject to the FOIA if they are directly supported by public funds. Mississippi’s law restricts coverage of its open records law to entities “created by the Constitution, or by law, executive order, ordinance or resolution.”

In Arkansas, records of any agency “wholly or partially supported by public funds or expending public funds” are open under the FOIA, as long as the private group does “public business” or is otherwise connected to governmental activities. Arkansas courts have specifically held that law firms hired by a city, a hospital receiving federal funds and an athletic conference are subject to the open records law.

Missouri, Oklahoma, Texas, Tennessee and Louisiana have similar provisions in their open records laws. Records have been determined to be public under those laws for such organizations as a nonprofit volunteer fire department, the portions of a private museum under city support and records of a public university’s student government association budget.

All the states allow inspection and copying of public records, but copying does not necessarily include photocopies. When photocopying is offered, the question arises as to how much can be charged for the task — just for materials or also to cover employee time?

Opinions by Arkansas attorneys general say an agency can charge only “a fee reasonably related to the actual cost of duplication,” but cannot charge for the time spent by employees searching for the records unless another statute specifically allows the charge. Nor should an agency be able to charge for the time spent determining whether all or only parts of a record are closed under the act.

Mississippi, Missouri, Texas and Tennessee laws allow charging a reasonable cost for finding and preparing the record. Oklahoma restricts the fee to the direct cost of copying unless the request is for a commercial purpose “or would cause excessive disruption in gathering the documents.” The provision does not apply to court records, nor to documents for publication in a newspaper or broadcast by news media.

Records that are exempt from the open records laws in the seven states surveyed are described specifically in the language of the acts. The addition of a catch-all phrase is used to include exemptions provided in other statutes.

Arkansas and Tennessee are the only two among the seven that make the exemptions mandatory. The custodian of the records, the person actually responsible for keeping the records, has no choice but to withhold the record exempted. In the other states, the public body — or in Louisiana, the custodian — can decide not to keep the record confidential.

In Arkansas, a public record should be made available immediately if it is not in “active use or in storage.” If it is, the custodian has three working days to produce the record. In Mississippi, the custodian has 14 working days. Oklahoma and Tennessee provide no time limit. Many conditions determine what a “reasonable time” is under the Texas law.