Press Releases

Question 1: If a council member is asked to attend or speak at a civic event, Rotary Club, Kiwanis, etc., where other council members may be present and is asked to state an opinion on current or potential business before the governing body, is that a violation of A.C.A. § 25-19-106(g)? What if it is arranged as a debate between candidates for various council seats and current council members are asked to state and defend their opinion on items that are current or potential business to be voted on by city council? If the answers to the above questions are “yes,” those are potential violations of FOIA based upon the requirement that all business before the council be discussed in the public meeting; are there steps that could be taken to “cure” this potential violation in advance?

Brief Response: It is my opinion that, generally, a council member may speak at a civic event without violating the FOIA—even if another council member is present—provided that the speaker has no control over the event and addresses a broad public audience without directly exchanging information or opinions or discussing prohibited topics with another member of the governing body. But this is a highly factual question. If circumstances indicate that members of a governing body used a public event to evade or circumvent the FOIA, a court could find that such conduct violated the FOIA. A governing body must be given the opportunity to cure violations of the FOIA’s meeting provisions. Further, a willful and knowing violation of the FOIA could also be grounds for a claim that an elected city official was guilty of the criminal offense of “nonfeasance in office.”

Question 2: The burden of responding to and redacting lengthy FOIA requests has led several municipalities to contract with outside programs designed to assist in documenting, redacting, and responding to these requests. An example is a company called JustFOIA, but I am sure there are other examples. These companies store the responses to the FOIA requests for a period of time after the municipality has responded to the request. Are these responses, which are stored by an outside company, considered “kept” by the municipality for the purposes of responding to future FOIA requests? Does it change the answer if the municipality has the ability to determine how long the company stores the data? Example: John Doe requests all of the Mayor’s emails for a three-month period. Those emails are reviewed, redacted, and submitted to the outside company for distribution to the requestor. The FOIA request and all of the attached emails are then stored by that company for a period of two years. A year later, Jenny Smith makes a request for all of the Mayor’s emails about the city police department policies. The City only maintains emails on their server for a period of three months before they are permanently deleted. The City responds to Jenny with three months’ worth of emails on the topic requested. Is the City required to search the emails stored by the outside company that were kept because they were provided in the FOIA to John Doe to see if any are responsive to Jenny’s request? Are those emails considered “kept” by the municipality?

Brief Response: Yes. As explained in the opinion, the municipality must provide copies of, or arrange for reasonable access to, those records under the FOIA. Thus, in your example, the City must search the emails held by the company if they remain under the City’s administrative control, notwithstanding the City’s three-month retention policy.