Stricken language would be deleted from and underlined language would be added to present law.
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State of Arkansas 1
94th General Assembly A Bill 2
Regular Session, 2023 HOUSE BILL 1726 3
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By: Representative Ray 5
By: Senator B. Davis 6
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For An Act To Be Entitled 8
AN ACT TO AMEND THE LAW CONCERNING THE F REEDOM OF 9
INFORMATION ACT OF 1 967; TO AMEND THE LA W CONCERNING 10
DEFINITIONS USED IN THE FREEDOM OF INFOR MATION ACT OF 11
1967; TO ADD PUBLIC RECORDS EXEMPTIONS; TO AMEND 12
PUBLIC MEETINGS REQU IREMENTS; TO AMEND REQUIREMENTS 13
RELATED TO CUSTODIAN S PROCESSING PUBLIC RECORDS 14
REQUESTS; AND FOR OT HER PURPOSES. 15
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Subtitle 18
TO AMEND THE FREEDOM OF INFORMATION ACT 19
OF 1967; TO ADD DEFINITIONS; TO ADD 20
PUBLIC RECORDS EXEMPTIONS; TO AMEND 21
PUBLIC MEETINGS REQUIREMENTS; AN D TO 22
AMEND REQUIREMENTS RELATED TO CUSTODIANS 23
PROCESSING PUBLIC RECORDS REQUESTS. 24
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 27
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SECTION 1. Arkansas Code § 25 -19-103, concerning definitions used 29
under the Freedom of Information Act of 1967, is amended to add additional 30
subdivisions to read as follows: 31
(10) "Governmental agency" means an office, department, 32
commission, council, board, committee, legislative body, agency, or other 33
establishment of the executive, judicial, or leg islative branch of the state, 34
including without limitation the office of a public official; 35
(11) "Public appointee" means an individual who is appointed to 36 HB1726
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a governmental agency. 1
(12) "Public employee" means an individual who is employed by a 2
governmental agency or who is appointed to serve a governmental agency; 3
(13) "Public official" means a person holding an elective office 4
of any governmental agency, whether elected or appointed to the office; and 5
(14) "Public servant" means a person who is serving at the state 6
level of government and is a: 7
(A) Public appointee; 8
(B) Public employee; or 9
(C) Public official. 10
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SECTION 2. Arkansas Code § 25 -19-105(b)(6), concerning records not to 12
be deemed to be made open to the public under the Freedom of Information Act 13
of 1967, is amended to read as follows: 14
(6) Undisclosed or ongoing investigations by law enforcement 15
agencies of suspected criminal activity and any evidence or materials likely 16
to be used by law enforcement in a criminal pro secution; 17
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SECTION 3. Arkansas Code § 25 -19-105(b), concerning records not to be 19
deemed to be made open to the public under the Freedom of Information Act of 20
1967, is amended to add additional subdivisions to read as follows: 21
(28) Communication betwee n a public servant acting in the 22
performance of his or her duties or within the scope of his or her employment 23
and the legal counsel of a governmental agency, relating to legal advice or 24
assistance provided to the public servant in the performance of his o r her 25
duties, including without limitation: 26
(A) Records or memoranda prepared by the legal counsel 27
related to the legal advice or assistance provided; and 28
(B) Communication between the legal counsel of the 29
governmental agency and the legal counsel of another governmental agency, if 30
the communication is related to the advice or assistance provided; 31
(29) A record that was prepared: 32
(A) By an attorney representing a governmental agency or a 33
public servant acting in the performance of his or he r duties or within the 34
scope of his or her employment; and 35
(B) In anticipation of litigation or for use in pending 36 HB1726
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litigation; 1
(30) Deliberative process records of a governmental agency in 2
which opinions are expressed or policies or actions are formulated, if 3
related to a needed determination of policy or action and created or received 4
by the agency, including without limitation: 5
(A) Drafts; 6
(B) Notes; 7
(C) Recommendations; 8
(D) Memoranda; 9
(E) Correspondence; and 10
(F) Other records, if related to an agency determination 11
of policy or action; and 12
(31)(A) Data, records, or information that is: 13
(i) Of a proprietary nature; 14
(ii) Produced or collected by or for faculty, staff, 15
students, or contractors of an institution of higher education, a 16
governmental agency, or a public or private entity supporting or 17
participating in the conduct of research on agricultural, medical, 18
commercial, scientific, technical, scholarly, institutional, or artistic 19
matters, whether sponsored by the institution of higher education alone or in 20
conjunction with a contractor, governmental agency, or public or private 21
entity; and 22
(iii) Not publicly released, published, copyrighted, 23
or patented. 24
(B) The exemption provided in sub division (b)(30)(A) of 25
this section includes without limitation: 26
(i) Information that discloses the identity of any 27
participants or private entities in the research; 28
(ii) Information provided by participants in the 29
research; 30
(iii) Research notes and data; 31
(iv) Discoveries; 32
(v) Methodologies; 33
(vi) Protocols; and 34
(vii) Creative works. 35
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SECTION 4. Arkansas Code § 25 -19-105(d)(3)(A), concerning the 1
examination and copying of public records under the Freedom of Informati on 2
Act of 1967, is amended to read as follows: 3
(3)(A)(i)(a) Except as provided in subdivision (d)(3)(A)(i)(b) 4
of this section, § 25-19-109, or by law, any fee for copies shall not exceed 5
the actual costs of reproduction, including the costs of the mediu m of 6
reproduction, supplies, equipment, and maintenance, but not including 7
existing agency personnel time associated with searching for, retrieving, 8
reviewing, or copying the records. 9
(b) If personnel time to retrieve, review, 10
redact, and provide rec ords exceeds eight (8) hours, personnel time exceeding 11
eight (8) hours may be charged at a rate not to exceed the salary or hourly 12
pay of the lowest paid employee or contractor who, in the discretion of the 13
custodian, has the necessary skill and training t o respond to the request. 14
(ii)(a) The custodian may also charge the actual 15
costs of mailing or transmitting the record by facsimile or other electronic 16
means. 17
(b) If the custodian's existing software 18
requires that records be printed out and sca nned electronically to be 19
electronically transmitted, the custodian may charge the requestor for the 20
actual cost incurred to print and scan the records. 21
(iii) If the estimated fee exceeds twenty -five 22
dollars ($25.00), the custodian may require the req uestor to pay that fee in 23
advance. 24
(iv) Copies may be furnished without charge or at a 25
reduced charge if the custodian determines that the records have been 26
requested primarily for noncommercial purposes and that waiver or reduction 27
of the fee is in the public interest. 28
(v)(a) Except as provided in § 25 -19-109 or 29
otherwise in this section , the custodian may not charge a fee for the 30
requestor's inspection or copying, including without limitation copying 31
through image capture, including still and mo ving photography and video and 32
digital recording, of public records. 33
(b) If personnel time to retrieve, print, 34
copy, or otherwise provide records for the requestor's inspection or copying 35
exceeds eight (8) hours, personnel time exceeding eight (8) hours may be 36 HB1726
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charged at a rate not to exceed the salary or hourly pay of the lowest paid 1
employee or contractor who, in the discretion of the custodian, has the 2
necessary skill and training to respond to the request. 3
(vi) If a requestor has outstanding invoices for 4
requests previously filled under this section, the custodian may refuse to 5
fulfill any new requests from the delinquent requestor under this section 6
until the outstanding invoices are paid in full. 7
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SECTION 5. Arkansas Code § 25 -19-105(e), concerning the examination 9
and copying of public records under the Freedom of Information Act of 1967, 10
is amended to read as follows: 11
(e)(1) If a public record is in active use or storage and therefore 12
not available at the time a citizen asks to examine it, the custodian shall 13
certify this fact in writing to the applicant and set a date and hour within 14
three (3) ten (10) working days at which time the record will be available 15
for the exercise of the right given by this chapter. 16
(2) If it is not practicable to retrieve, review, redact, and 17
provide requested public records wit hin the normal business hours of the 18
number of working days specified in subdivision (e)(1) of this section, the 19
custodian shall notify the requestor of the necessary delay in writing and 20
shall provide the following information: 21
(A) The date and time a t which the records will be made 22
available; 23
(B) The specific reason why the records cannot be produced 24
within the applicable time period; and 25
(C) A breakdown of the estimated employee or contractor 26
time that will be spent fulfilling the request. 27
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SECTION 6. Arkansas Code § 25 -19-106(c)(1)(A), concerning open public 29
meetings under the Freedom of Information Act of 1967, is amended to read as 30
follows: 31
(c)(1)(A) Except as provided under subdivision (c)(6) of this section, 32
an executive session wil l be permitted only for the purpose of : considering 33
(i) Considering employment, appointment, promotion, 34
demotion, disciplining, or resignation of any public officer or employee ; or 35
(ii) Discussing matters related to cybersecurity or 36 HB1726
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cyberattacks that could expose a governing body to vulnerabilities if made 1
public. 2
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