Tuesday, May 28, 2024

Tiiiiiiiiiiime is on my side (Yes, it is)

[I promise a Mark Martin-free weekend, if only because I’m kind of sick of talking about him, but you’ll have to indulge me one more Martin-related post. –Ed.]

After my last three posts, I did not expect a warm and welcoming response to the FOIA request I sent to Alice Stewart last night.  So it was no surprise, save for possibly a temporal curveball, that I received the following email this afternoon:


I have received this FOIA and will respond in the required time.

Have a nice day,
Alice Stewart

So, you know … whatever.  But then I got to thinking about the whole “required time” and how it’s just generally accepted that agencies have three business days to respond to an FOIA request.

Except … well … look at this language from A.C.A. 25-19-105:

(d)(2)(A) Upon request and payment of a fee as provided in subdivision (d)(3) of this section, the custodian shall furnish copies of public records if the custodian has the necessary duplicating equipment.

Parsing this rule, when two requirements are met — (1) a request and (2) payment — the custodian “shall” (read: must) furnish copies as long as it is technologically possible and, pursuant to A.C.A. 25-19-105 (a)(1)(A), possible prior to the close of business.

That’s it.  That’s the entire requirement.

Now, with so many requests made via email these days, I would argue that the “payment of a fee” language translates to “is able and willing to pay the fee.”  Otherwise, agencies could, by the letter of the law, just drag their feet until someone sends payment for copies, despite having no idea how many pages or what the total price would be.  That would run counter to the holdings of Arkansas courts, which have held that “[t]he court’s policy regarding this chapter has been enunciated clearly in our case law — it will interpret it liberally to accomplish the purpose of promoting free access to public information.” See Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994).

Where does the idea that agencies have three business days to fill an FOIA request come from?  Misinterpretation, really.  A.C.A. 25-19-105 (e) states (emphasis added):

If a public record is in active use or storage and therefore not available at the time a citizen asks to examine it, the custodian shall certify this fact in writing to the applicant and set a date and hour within three (3) working days at which time the record will be available for the exercise of the right given by this chapter.

You see, it’s only when a requested document is not readily available that the three-day deadline kicks in.  In other cases, when the requested records are available, the “required time,” as Ms. Stewart put it, is more or less immediately.

Now, I don’t mean to pick on Ms. Stewart over this. The three-day requirement is pretty much the AR-universally accepted conventional wisdom.  Heck, I’m even guilty of citing it as the rule for FOIA requests.  Nevertheless, just as repetition doesn’t turn a lie into the truth, repetition of this “rule” does not mean that it trumps the actual language of the statute.

And, with that, the Mark Martin-free weekend begins.

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