402 S.W.3d 511
Ark.2012Background
- Harrill & Sutter sued alleging FOIA violation regarding a public records request for a physicians’ and attorneys’ files.
- Defendants include Dr. Farrar, Dr. Bass, Dr. Thompson, Mariam Hopkins, Anderson, Murphy & Hopkins, LLP, and related University entities; Arkansas Children’s Hospital intervened later.
- Circuit court found FOIA did not apply to the records, the doctors, or the attorneys; records were not public records and privileged/work-product.
- Amended order clarified intervenors’ status and made explicit factual findings: private attorneys/insurance carrier; FPIC insured the doctors; UAMS paid policy premium; records created in private representation, not public business.
- Harrill & Sutter nonsuited the FOIA claim; counterclaims for declaratory relief proceeded; the court addressed standing and the applicability of FOIA.
- This court affirms, holding FOIA did not apply because private attorneys and doctors were not public entities and the requested records were not public records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary FOIA applies to private physicians and attorneys | Harrill & Sutter asserts FOIA covers public business records | Appellees contend physicians/attorneys were private; records not public | FOIA does not apply |
| Whether standing issues bar counterclaims for declaratory relief | Harrill & Sutter challenges counterclaims on standing | Appellees had proper stake and standing to seek declaration | Standing not a meritorious barrier; counterclaims proceed |
| Whether a voluntary FOIA dismissal moots related counterclaims | Dismissal of FOIA claim should moot counterclaims | Counterclaims survive dismissal under Rule 41(a) and Lemon | Counterclaims may proceed despite nonsuit |
| Whether the circuit court erred in interpreting FOIA applicability to private litigation records | FOIA should apply as to records created under public funds or public functions | Records created in private litigation and paid by private insurer are not public records | FOIA not applicable; records are not public records |
Key Cases Cited
- Harrill & Sutter v. Farrar, 2011 Ark. 181 (Ark. 2011) (precedent on FOIA applicability)
- Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass’n, 371 Ark. 411 (Ark. 2007) (test for public records subject to FOIA)
- City of Fayetteville v. Edmark, 304 Ark. 179 (Ark. 1990) (memoranda by private outside counsel as public records if public funds involved)
- Swaney v. Tilford, 320 Ark. 652 (Ark. 1995) (private auditors’ working papers may be public records when public entity hires them)
- Lemon v. Laws, 305 Ark. 143 (Ark. 1991) (counterclaims may proceed after plaintiff nonsuit)
- Dorsey v. Dorsey, 226 Ark. 192 (Ark. 1956) (voluntary dismissal effect on counterclaims)
- Pulaski County v. Carriage Creek Improvement Dist. No. 639, 319 Ark. 12 (Ark. 1994) (standing not jurisdictional defect)
- Arkansas Game & Fish Comm’n v. Murders, 327 Ark. 426 (Ark. 2000) (statutory interpretation framework for FOIA-related issues)