FOIA: Common

Misconceptions

Presented By:

Senior Assistant Attorney General Nga Mahfouz

Penalties and Consequences of

Non-Compliance • Civil Suits

– Attorneys’ fees

– Other litigation expenses

– Successful plaintiff must apply to claims commission for reimbursement

– Time spent preparing for and appearing in court

• Criminal Prosecution – Requires a showing of negligent violation only

– Class C misdemeanor

– Jail sentence

– Fines

– Attorneys’ fees

• Increased agency visibility

• Bad press

E-mails On Personal Servers

Aren’t Public Records • Cannot circumvent FOIA by transferring documents to non-

public location

• Content and possession/control of the record, not the

location, dictates whether records should be disclosed

– Examples:

• E-mails sent on private accounts

• Records kept at home

• Text messages on personal phones

• Mail sent to an official’s residence

• Records maintained by private counsel

Practice Tips

Caution employees about conducting business on

personal devices and storing records outside of the

office

FOIA Requests Must

Be Submitted in Writing • Requests can be made in any format

– Written

• E-mails

• Letters

– Verbal

• Phone call

• In person

• Requestor dictates the mode of transmission

• No magic words required

– However, must be specific enough to allow agency to locate records with reasonable

effort

• Requests for prospective records not permitted

• Requestor not required to state the purpose of the request

– Intent of request is irrelevant

Practice Tips

Document verbal requests with a memo to the file, so that a record of the request

exists

Custodian of Records Has 3

Days to Respond To Requests • An immediate response is generally required

• 3 working days if records are in active use or storage

– The statutory deadlines apply to all requests, even voluminous requests

– The deadlines are not suspended during busy work weeks or when

people are out on leave

Practice Tip:

Contact requestor upfront if response will take longer than 3 days

Ask the requestor what he/she is looking for, to narrow the scope of the

request and save time

Provide responses in batches or as records are prepared, to minize delay

in delivery

The Agency Can Charge For

Labor Costs • Generally, custodian may only charge for actual cost of reproduction and mailing or

faxing

– Usually determined with input from IT or finance

– 25 cents per copy probably not reasonable

– Custodian required to provide breakdown of charges

• Exception: if the custodian agrees to compile electronic data in a particular

manner/medium and provide the data in an electronic format that is not readily

convertible

• May only charge for actual cost of personnel time which exceeds 2 hours

• The labor cost must be verifiable and associated with the task of conversion

Practice Tips

Requestor should be advised of large costs, before copying begins

Can require fee be paid in advance

Providing electronic copies might be easier and faster

Avoid copying duplicate documents

Always retain a copy of the documents provided

Personnel Files Should

Automatically Be Released • Within 24 hours of receiving the request, custodian is required to determine

whether records are exempt

• Custodian must make efforts to fullest extent possible to notify requester

and subject employee of custodian’s decision

– If subject cannot be reached by phone or in person within 24 hours, must

send overnight mail notification to last known address

– Notification is required even for former employees

– Large number of subjects does not relieve custodian of this responsibility

• Employee must be given an opportunity to seek an opinion as to whether the

custodian’s decision is consistent with FOIA

– Opinion must be sought immediately

– Subject should seek an opinion within 24 hours of the custodian’s

decision. Opinion No. 97-008

Personnel Files (cont’d)

Practice Tip

Provide records to subject so that he/she can determine whether to seek

an opinion

Impose a deadline by which the subject employee must notify custodian

as to whether an opinion will be sought, so that the release of records is

not unnecessarily delayed

Ask custodian for additional time if the amount of records cannot be

reviewed/determination cannot be made within 24 hours

Develop and enforce a record retention (and purge) policy to avoid

having to sift through voluminous documents

Evaluation Records Pertain to

Annual Reviews Only • Includes any record created by or at the behest of an employer to

evaluate an employee – E-mails – Memos – Statements taken during investigations

• May not be released unless: – Suspended or fired – Final administrative resolution – Records formed a basis for the decision – A compelling public interest in disclosure

• Consider: (1) the nature of the infraction that led to suspension or termination, especially if violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency.

The Custodian Doesn’t Have To

Provide Deleted Files • 2 tests

• “Public Records” test: Are the records otherwise kept? – Backup servers

– Archival systems

• “Ready conversion” test: Are the records readily convertible from the format in which they are stored? – Conversion using available resources, without undue effort or expense vs. conversion

requiring outside expertise, specialized software, knowledge, time, and money

– E.g., data recovery systems (Opinion No. 2014-137)

• Can the request be treated as a special request for electronic information? – ACA 25-19-109: providing data becomes discretionary

The Agency Is Not The Custodian

Of Records Located Offsite

• Custodian is the person having administrative control

– Does not need to be the person who actually keeps the document or

is required to keep the document; not someone who merely holds

records for storage or safekeeping

• Where there is no dispute that the records are public, the agency is

responsible for providing reasonable access for inspection and copying.

• Cannot circumvent FOIA by delegating regular duties to a private actor

– Example: Agency hires private firm to conduct an audit. The audit

findings are maintained at the auditor’s office.

Records Located on Public Servers

Should Always Be Disclosed • FOIA requires disclosure of public records only

– Required by law to be kept or otherwise kept – Must constitute a record of performance or lack of performance of

official/employee • Purely personal e-mails probably do not qualify as public records:

– Can you pick up the dry cleaning? – What should we have for dinner?

• Does personal use of state e-mail constitute a record of lack of performance? • Custodian should determine whether e-mail constitutes public record Practice Tips:

Develop and enforce a regularly mailbox purge policy Develop or enforce a record retention policy Make sure the emails don’t qualify as some other type of record, i.e., personnel file

or evaluation record

Investigative Records Can

Never Be Released • Protects ongoing criminal investigations conducted by law enforcement

agencies • Whether investigation is ongoing depends on the facts

– Arrest – Filing of charges – Completion of trial – SOL has run

• Personnel/HR investigations generally don’t qualify for this exemption • Records must be disclosed upon completion of investigation, not

necessarily when the charge is finally resolved Practice Tips:

Informing requestor of exemption does not require revealing specific details about the investigation

Completion of investigation as to one person belonging to a group being investigated does not necessarily mean the investigation is not ongoing

No Response Is Required If The

Custodian Doesn’t Understand The

Request • Must be sufficiently specific to permit agency to locate records

with reasonable effort

– Not required to describe records in great detail, i.e., the name

of the document or file

• Size of the records to be produced is not a factor

– However, ambiguity with respect to timeframes may render

agency incapable of responding with reasonable effort

(Opinion No. 2003-337)

• E.g., a request for all e-mails sent and received by all

employees for an unspecified amount of time or with no

restrictions as to the subject matter of the e-mails.

Practice Tips

Ask the requestor for clarification in the records being sought

All Personal Information is

Exempt • Is it a listed exemption?

– State income tax records – Medical, adoption, educational records – Personal contact info for nonelected employees

• Is it otherwise exempt? – DL and SS numbers – Banking, insurance, marital status, payroll deductions, DOB, withholdings,

dependent info, expunged criminal history – Is it an evaluation record?

Practice Tips Consult attached checklist for possible exemptions/items to be redacted Remember that a single record may contain both exempt and non-exempt

information Double-check redactions before releasing information

Miscellaneous

• “Confidentiality agreements allow us to lawfully withhold records”

• “We have to redact information, if an employee is requesting his/her own personnel file”

• “We don’t have to furnish copies, if we make the records available for inspection”

• “We can’t release the names of unsuccessful job applicants”

800.482.8982

oag@ArkansasAG.gov

AGLeslieRutledge

AGRutledge

AGLeslieRutledge

ArkansasAG

AGRutledge

Attorney General Leslie Rutledge