Copy of Arkansas FOIA
Published on Nov 21, 2015
Arkansas FOIA for rural water associations
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PRESENTATION OUTLINE
Why is this screenshot significant?
Open Meetings
•Meeting is “any meeting of a political subdivision supported wholly or in part by public funds”
• Considered “meeting” even if no official action is taken
• Examples:
board meeting, committee meeting, workgroup session, discussion of proposals, information gathering,
• Considered “meeting” even if no official action is taken
• Examples:
board meeting, committee meeting, workgroup session, discussion of proposals, information gathering,
Photo by vee !
Could this be a meeting?
Two members can be a meeting depending on the facts.
• Was a matter discussed on which the Board may take foreseeable action? If yes, then meeting.
• Social Gatherings- not “meeting” if discussion of business is incidental and intermittent
• Was a matter discussed on which the Board may take foreseeable action? If yes, then meeting.
• Social Gatherings- not “meeting” if discussion of business is incidental and intermittent
Photo by tim caynes
Could this be a meeting?
Two members can be a meeting depending on the facts.
• Was a matter discussed on which the Board may take foreseeable action? If yes, then meeting.
• Social Gatherings- not “meeting” if discussion of business is incidental and intermittent
• Was a matter discussed on which the Board may take foreseeable action? If yes, then meeting.
• Social Gatherings- not “meeting” if discussion of business is incidental and intermittent
Photo by tim caynes
Could a phonecall be considered a meeting?
"Telephone poll"
The FOIA requires that all meetings of the governing bodies of all municipalities be held openly, and that notice of such meetings be given to the public.
The Arkansas Supreme Court has held that decision-making by means of a private "polling" of a governing body, without that process being made open to the public, violates the open meetings requirement.
Meetings may be conducted by teleconference when properly noticed.
The FOIA requires that all meetings of the governing bodies of all municipalities be held openly, and that notice of such meetings be given to the public.
The Arkansas Supreme Court has held that decision-making by means of a private "polling" of a governing body, without that process being made open to the public, violates the open meetings requirement.
Meetings may be conducted by teleconference when properly noticed.
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Notice: Regular v. Special
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Rights of Citizens at Meetings
• Entitled to learn of action taken as well as reasons for making such action, including deliberations, discussions, and information gathering
• Must be given reasonable access to meeting
• Does not grant right to public participation, instead right to be informed of governmental actions
• No secret vote, public should be advised of performance of individual board members
• If minutes of meeting kept, must be available for inspection and copying
• Must be given reasonable access to meeting
• Does not grant right to public participation, instead right to be informed of governmental actions
• No secret vote, public should be advised of performance of individual board members
• If minutes of meeting kept, must be available for inspection and copying
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Executive Session
Photo by Todd Baker << technowannabe
Open Records
• Does not apply to future records not yet in existence (no ongoing requests)
• Applies to existing records, no need to create record
• Request must be detailed enough that custodian can locate record with “reasonable effort”
• Does not matter whether request is unduly burdensome
• Applies to existing records, no need to create record
• Request must be detailed enough that custodian can locate record with “reasonable effort”
• Does not matter whether request is unduly burdensome
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What is a public record?
- anything kept
- in any medium
- that is a record of performance or lack of performance
Public record = writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium
kept on purpose or "otherwise kept"
kept on purpose or "otherwise kept"
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Does this contain records??
if you use your phone to conduct business, then any record of that business on your phone is a record and likely subject to disclosure.
Any record--texts, photos, emails, usage of apps for work.
Records on your phone are just like records on your computer.
Any record--texts, photos, emails, usage of apps for work.
Records on your phone are just like records on your computer.
Photo by Yutaka Tsutano
Personal email account?
Records of work on your personal mail account are just like records on your work account.
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Test for Disclosure:
1. Public Record?
2.Exception ?
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Information that must be Redacted
-birth date
-SSN
-medical information
-DL numbers
-insurance coverage
-tax information or withholding
-payroll deductions
-banking information
-unlisted telephone numbers
-home addresses of non-elected public employees
-personal e-mail addresses
-marital status of employees and information about dependents.
•benefits information, such as pension, is also exempt from disclosure
So private that this info must never be disclosed
-SSN
-medical information
-DL numbers
-insurance coverage
-tax information or withholding
-payroll deductions
-banking information
-unlisted telephone numbers
-home addresses of non-elected public employees
-personal e-mail addresses
-marital status of employees and information about dependents.
•benefits information, such as pension, is also exempt from disclosure
So private that this info must never be disclosed
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Exempt Information
Legal will determine information that is exempt.
Discussion of
1. Employee evaluation records
2. Personnel records
Discussion of
1. Employee evaluation records
2. Personnel records
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Employee Evaluation Records
Presumed Exempt
A “employee evaluation or job performance record” refers to any record
(1) created by or at the behest of the employer
(2) to evaluate the employee (3) that details the employee’s performance or lack of performance on the job.
Example: A record generated while investigating allegations of employee misconduct that details incidents giving rise to the allegations.
(1) created by or at the behest of the employer
(2) to evaluate the employee (3) that details the employee’s performance or lack of performance on the job.
Example: A record generated while investigating allegations of employee misconduct that details incidents giving rise to the allegations.
Photo by billsoPHOTO
An evaluation record will only be released if
- Suspension/termination,
- Final admin. resolution,
- Requested record formed basis for action, and
- Public has a compelling interest.
Evaluation records will be exempt from disclosure if the employee resigns but not if the employee is suspended or terminated.
Photo by clayjar
Personnel Records- very limited
Public Interest v. Privacy Interest
A “personnel record” is any record other than an employee evaluation record that pertains to an individual employee.
A personnel record is only exempt “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”
The public’s interest is measured by “the extent to which disclosure of the information sought would ‘shed light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’”
The public interest will usually outweigh any privacy interest.
A personnel record is only exempt “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”
The public’s interest is measured by “the extent to which disclosure of the information sought would ‘shed light on an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’”
The public interest will usually outweigh any privacy interest.
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Compelling Public Interest
- Nature of offense that led to suspension or termination: violation of public trust or gross incompetence?
- Existence of public controversy related to agency and employees
- Employee position within agency
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Is this record exempt?
Is this an employee evaluation record or personnel record?
Personnel record.
therefore subject to disclosure.
Personnel record.
therefore subject to disclosure.
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How do I respond to a request?
IMMEDIATELY notify Legal.
Locate records.
Scan records.
Provide scanned copy to Legal. (Legal maintains FOIA log of all requests and responses.)
Paper copies and mailing expenses.
• No need to provide in specific medium unless readily available
Locate records.
Scan records.
Provide scanned copy to Legal. (Legal maintains FOIA log of all requests and responses.)
Paper copies and mailing expenses.
• No need to provide in specific medium unless readily available
Photo by Kenny_lex
Practical Tips
- ask for written request
- not required to create record
- Legal Division will maintain official record
- Make sure all involved parties know time is of the essence!
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Only Arkansas citizens can use the AFOIA.
Every document created on a public computer is a record.
Text messages can be a public record.
Emails on private accounts are never public records.
Requestors must pay the costs of redacting information from records.
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My personal email?
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Dance like no one is watching; email it like it may one day be used in a deposition.
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General Categories of Records
- General admin
- Meeting
- Automated System
- Personnel and HR
- Fiscal
- Legal
- Grant
Photo by RichTatum
Correspondence-Non-Substantive
- Information of temporary business importance or
- Unremarkable communication concerning day-to-day office admin and activities
- ??????
Examples
*correspondence not attempting to influence state policy
*email sent to large number of people at same time via email distribution message
*agency event notice (no value after being calendared or attended by employee)
*routine requests for public records
*incoming letters or memos of transmittal that add nothing of substance to enclosures
*correspondence not attempting to influence state policy
*email sent to large number of people at same time via email distribution message
*agency event notice (no value after being calendared or attended by employee)
*routine requests for public records
*incoming letters or memos of transmittal that add nothing of substance to enclosures
Photo by RichTatum
Correspondence-Non-Substantive
- May be destroyed after it has served its intended purpose or is no longer of value to the agency
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Identifying type of record
- Ask Legal for assistance if unsure how long to keep a record
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