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Paul Holmes, FOIArkansas Project

JONESBORO — While the intent of Arkansas’ Freedom of Information Act — to assure open meetings and open records — remains unchanged 32 years after its passage, what has changed radically is the way records are stored and retrieved.

When the FOIA was written, a computer was a gargantuan machine that took up huge amounts of floor space; “laptop” was the place a party guest balanced a plate of hors d'oeuvres.

As computer sizes and prices have come down, “records have become more and more electronic in nature,” noted Dennis Byrd, Little Rock bureau chief for Arkansas News Bureau and a member of the recently appointed Electronic Records Study Commission.

The commission, created by Act 1060 of the last General Assembly, met for the first time Aug. 27.

Jeff Porter, computer-assisted reporting editor for the Arkansas Democrat-Gazette and another member of the commission, said, “Since the FOIA was written, there has been an explosion in the amount of electronic information available.”

The commission is charged with studying the issue of public access to electronic or computerized records and developing recommendations for any needed legislation to the 2001 General Assembly. The commission is to submit its final report on Dec. 15, 2000, and goes out of existence on Dec. 31, 2000. The idea of a study commission didn't originate in the 1999 General Assembly, said Tom Carpenter, city attorney for the City of Little Rock. It first came up, he said, when Jim Guy Tucker was governor.

Cities had been complaining about technology-related FOI compliance problems before the session, veteran journalist Carol Griffee of Little Rock agreed. Griffee is a Freedom of Information Coalition member, who is considered one of the state’s leading FOIA advocates.

Griffee said a bill was drafted this year that would have given cities more than the allowed three days to produce a requested record that is in storage or active use.

“They say they get requests for data in forms they don’t keep it in and in order to comply, they need more time; they can't stick with the three days,” Griffee said.

However, lawmakers decided to take a wider view of FOIA compliance issues, rather than amending the act to give the cities relief from the time deadline.

The legislature created the Electronic Records Study Commission, which includes representatives of the Arkansas Municipal League, the Association of Arkansas Counties, the Arkansas School Boards Association, the Arkansas Press Association, the attorney general and the state Department of Information Services. It also includes appointees of the governor and Legislature.

Griffee said she wants to hear “some real life testimony from city, county and other officials who get in there and tell us what they think their problems are.”

Carpenter, who testified about Little Rock’s concerns before the commission in September, said he sees a number of potential areas for the commission's study.

“You’ve got a vibrant area in which technology is constantly changing,” he said. For example, he said, a city government might have the computer capability to produce a differential analysis of municipal employees’ salaries, but perhaps “you’re not going to be able to get that overnight.”

In another instance, he said he foresees members of the media or the public requesting information that exists in the government entity's computer, but not in the form requested.

“The FOIA doesn’t make you create it, but shouldn't you?” he asked rhetorically.

If a government does create a record from data it possesses, he said, and has to write an original program to produce the record, “What do you charge for this?”

Carpenter said cost determination should take into account a programmer's time to create an original program as well as the time to produce the record.

A charge of 25 cents per page, which the state attorney general has said is not unreasonable for photocopies, may not be reasonable in the case of an electronic record, Carpenter said.

Carpenter said releasing an entire database that contains the information is one approach, but that could create additional problems by allowing unauthorized access to information that is exempt from disclosure under the FOIA.

“You can say ‘I want all the records and I'll be careful not to use any exempt stuff,’” but that might not satisfy the requirements of law or assuage the unease of the official who is custodian of those records, Carpenter said.