Bryant v. Weiss

be “committed” juvenile he cannot sentence because prison Instead, “committed” being he will face the court. prospect rehabilitation for his sustaining an where his institution prospects be will indeed “nil.” dissent.

I respectfully in this joins opinion. J., Thornton, WEISS, BRYANT, General Richard Winston Administration, Director, of Finance Arkansas Department Huckabee, and Mike Governor S.W.2d 902 98-564 Court Arkansas Supreme delivered December Opinion Hill, Gen., K. Att’y WinstonBryant, Att’y by: Kelly Deputy Gen, Asst. for and David R. Sr. appellant. Gen. Att’y Raupp, Watkins, Mars, for ThomasA. Mars and Everett & by: J. John appeEee. General Winston Attorney Ray Thornton, Justice. of the Pulaski Circuit

Bryant brings appeal County General, in that the his official Court’s Attorney acting finding the his suit denial of lacks to to standing bring capacity, appeal to the Arkansas Freedom for access documents to request pursuant Win- of Information Act. We do not Attorney agree and, ston lacks to Bryant bring accordingly, appeal, remand. we reverse and

In October of Mike Fluckabee established Governor with “hotline” to receive connection aEegations wrongdoing was housed and staffed state contracts. hotline originaEy Administration, and ulti- the of Finance but was by Department the Gover- moved to Governor’s offices. mately FoEowing nor’s media denial of hotline-generated requests inspect Act, documents to the Freedom of Information Attorney General Winston a Freedom Information Bryant presented Weiss, of the Governor Richard Director Administration, of Finance and to examine Department seeking all documents hotline. The Gov- photocopy generated ernor denied the “working request, papers” exemption to the Freedom of Information Act. 11, 1997,

On December General filed a Com- Attorney for Relief Relief Pursuant to the Arkansas plaint Declaratory Act, Freedom of Information other an in among things, seeking, camera of the records to determine whether were inspection any and release of documents not On exempt, subject exemption. 12, 1997, December the Governor a Motion filed to Dismiss the or, alternative, Appeal, Disqualify Attorney General lacked arguing bring action.

On without such issues February as reaching whether the records are from disclosure the Free- exempt Act, dom of Information the circuit court the motion to granted dismiss on basis that the did not have stand- an action under the ing bring Freedom of Information Act. the trial court found that Specifically, General con- stitutes an “office” individual, or to an “entity,” opposed status, that as a of that consequence is not “citizen” for purposes of under the acquiring Freedom of Information Act. review of seeking the circuit appealed, court’s of the Freedom of interpretation Information Act to deny the standing.

On review of an issue of statutory we interpretation, are not However, bound the decision of the circuit court. in the absence of a the that trial erred court in its showing interpreta law, tion of the will be as correct on interpretation accepted Booneville, 871, SeeHazen v. Ark. appeal. 260 545 S.W. 2d City of Here, 614 trial (1977). the court’s appellant challenges interpreta statute, tion of the Freedom of Information Act and particularly the word “citizen” as the General of depriving exercise of the Freedom of provisions Information Act.

538 of access right govern

The first effective statutory the federal Free with the enactment of mental information came D. Franklin and Information in See Act 1966. dom of Justin Act Bouchard, and Privacy The Freedom Robert E. Information of Acts, 1.02, enacted similar at 1-17 ed. 1998). pro (2d its Free in with own tection access to information 1967 for public Act, 25- at Ark. Ann. codified now Code dom of Information §§ time, 1996, Since that 1997). 19-101 —25-19-107 Supp. (Repl. the Act of disclosure. this has construed in favor Court broadly Rock, 219, Little 766 S.W.2d See McCambridge City of cases Unlike involving statutory interpretation, 909 (1989). many of Act states the Freedom specifically legislative intent: in business be society per-

It is vital a democratic public an so shallbe manner electors public formed open and of decisions advised of of officials public performance and making that are reached in public activity public policy. end, it for is chapter adopted, making possible Toward them, learn report fully or their and to representatives of activities their officials. public 1996). Ark. Ann. 25-19-102 Code (Repl. have stated that the intent of

Our decisions clearly of to establish the Freedom of Information was right pub business. lic be conduct public City fully apprised 184-85, Edmark, Ark. S.W.2d 278 Fayetteville rule, benefit to be As a statutes enacted for are (1990). public Infor most to the The Freedom of interpreted favorably public. to be mation Act was interest is passed wholly end to the that its may liberally interpreted praiseworthy purposes McCord, Id., be Laman v. achieved.

S.W.2d 753 (1968). us turn atten-

It with these before that we our guidelines review the trial of the Free- tion our court’s interpretation reads dom Information Act. The statutory language pertinent be as records shall inspection follows: open public “[A]ll the Ark. Ann. citizen of State of Arkansas.” Code copying by any is advanced 1997). No 25-10-105(a) argument by any (Supp. § state of a citizen of the is that Winston Bryant party challenge citizen and Arkansas, as a private or that Winston Bryant, acting would have standing as not in his capacity Act. The the of Information Freedom an appeal bring lacks that the thrust of argument appellees’ the Freedom of to invoke the provisions as the word be that the should though is statute interpreted limit- the thereby had been added to statutory language, “private” the Act reach of the laudable by requiring the ing purposes the Act be citi- the any provisions private employing person zen Arkansas. State of the Legisla words not included

We do not supply Here, the intent. stat ture us at the legislative to assist in arriving of Arkansas” shall have ute citizen of State “any provides Ann. all records. Ark. Code public right copy inspect But, and “their the Act also refers to “elector” 25-19-105(a). § the statute was enacted. those for whose benefit representatives” Later in the the Act Ann. 25-19-102. chapter, Ark. Code pro § of each shall be vides that “The time regular meeting place who the information.” Ark. Code furnished anyone requests That added). Ann. 25-19-106(b)(l) 1996)(emphasis (Repl. that “the shall be notified of same subsection also provides public” or in order that the shall have emergency special meetings Code Ann. 25-19- at meeting. representatives 106(b)(2). that, held

This court has without delving previously into the distinctions between the various terms used in stat utes, the Act who informa anyone clearly provides requests tion is entitled to it. Arkansas and Transp.Dep’t. Hope Highway 711, Inc., Works, 294 Ark. S.W.2d 714 (1988), 77-78, Pickens, Co. v. 258 Ark. Gazette “citizen,” Here, the S.W.2d words (1975). “public,” all are used describe party “person,” “anyone,” to invoke Act for its public purposes. Interpreting empowered As said Arkansas Gazette words we broadly appropriate. reason, Co. v. 522 S.W.2d 350 (1975), and intention of the shall over its letter. legislation prevail spirit, 540

Id., 74, 522 258 Ark. at SW.2d at v. (1975), 353 citing Berry 547, Gordon, 237 Ark. 376 S.W.2d 279 (1964). these this Court has

Relying upon principles, previ concluded that a business in this a ously state is corporation doing entitled to information to the Act. Arkansas party pursuant High Inc., 490, and v. Works, Brick way 294 Ark. Transp. Hope Dep’t. 495, 711, 744 S.W.2d 714 (1988). court had Previously, resident, determined that a media was a representative who but did not demonstrate was an interested entided to citizenship, party under the Freedom of Information Act. Arkansas Gazette proceed Pickens, 69, 78, 350, v. 258 Ark. 522 S.W.2d 355 (1975). Indeed, Works, as the court out in Brick a pointed representa tive, a of a to including entitled representative corporation, receive information other would be any any entitled person receive the Act. Arkansas and Highway Transp.Dep’t. Inc., Works, 711, v. 294 Ark. 744 S.W.2d Further, court (1988). has addressed the issue of who is member of the for whose benefit the Freedom of Infor “public” mation Act was enacted held it to be an broad exceptionally term “both those who encompassing those who support officials, the actions or inactions of or oppose public employees, as well as those who wish learn agencies, of and evaluate merely actions Edmark, of officials.” public City Fayetteville 179, 801 S.W.2d (1990). definition is broad and is to be “public” means the liberally interpreted, i.e., at Id., large, public “body politic.” Gazette 522 S.W.2d 350 (1975). that, We conclude therefore of the giving language itsAct liberal construction and to the required turning legislative intent stated its Winston expressly provisions, is not Bryant deprived action because of the bring public office which he holds. We next issue address the whether Win ston as the in his Bryant, official acting capacity with broad statutes and Article 7 of powers the Arkan granted Constitution, sas to use of the possesses provisions Freedom of Information for the purpose ensuring business be in an manner” and “public performed open use the his office resources of the denial of his challenge Freedom to the Arkansas for information pursuant Act. Act to be of Freedom Information find federal

We of issue, its role of on this light progenitor instructive The federal Acts. of Information individual Freedom each state’s and their that states Act of Information contemplates Freedom Act, under notwithstand suit have bring agencies conferred language is not by that such standing explicitly ing been this court has not issue before specifi of the Act. While addressed, under Act stand decided the federal several cases cally have to appeal that state agencies for the proposition Environmental of Act See of a Freedom Information request. denial Mink, of Con U.S. 73 v. (1972)(members ProtectionAgency Act to Freedom of Information suit under federal gress brought Texasv. Inter nuclear tests); disclosure State concerning compel of Commission, State (5th 1991)(the F.2d 728 Cir. state Commerce fees be a recover attorney’s of Texas could eligible “complainant Mass. v. Act); the Freedom Information Commonwealth Serv., 727 35 (D.Mass. Health F. & Human Supp. U.S. Dep’t. of federal Freedom welfare suit under the 1989)(state agency brought held a federal of Information Act release documents seeking agency). Free the federal

Consistent with the interpretation Act, court’s own dom of Information and upon previ relying the Arkansas Freedom of Information ous liberal construction of we hold that the Attorney concerning standing proceed, in his and the resources of official acting capacity using office, the denial of his does his possess standing appeal there Act. We Arkansas Freedom Information the issues and the trial court to address fore reverse remand to of hotline- the release concerning raised pending litigation and for further documents generated proceedings by appellees consistent with opinion.

Reversed remanded.

Glaze, J., concurring. dissenting. Imber, J.J., Newbern Justice, concurring. majority opinion Tom Glaze, is correct if for no other reason than that ArkansasHigh- Works, Brick 294 Ark. way Transp. Dep’t Hope S.W.2d 711 (1998), this case. compels reversing remanding court, There the Arkansas Gazette 69, 522 S.W.2d 350 (1975), stated that the FOIA clearly provides who information under the “anyone Act is entided to requests Works, it.” Brick 294 Ark. at 495. Cer- added.) (Emphasis General Winston is no tainly, Attorney less a citizen than Bryant Works, was the which held corporation we was enti- tled to information under the FOIA. The General is a elector, which him to be a qualified citizen. See Ark. requires Const. Art. and Art. 3. To say Attorney is not a citizen he because acts in his official merely sim- capacity both constitutional and ply ignores law. statutory (FOIA) sum, In the comes within Attorney this broad clearly of the term “citizen” the interpretation FOIA this court. given by Professor Watkins this appropriately broad recognized interpreta- tion, that Brick Works stating even have the may expanded definition of the term “citizen” in the Act to include a foreign Watkins, See The Arkansas corporation. Freedom J. of Information (2d 284 ed. The 1994). decisions of Pickensand here, Worksare and we have not controlling been asked to over- Therefore, rule them. I would reverse.

David Newbern, Justce, The Arkansas dissenting. Freedom of Information Act entitles cit- (“FOIA”) “any izen of the State of Arkansas” to records inspect copy public not covered an by Code Ann. exemption. 25-19-105(a) citizen (Repl. added). denied the 1996)(emphasis “Any rights to him granted by chapter may from the appeal immediately denial” to the circuit court. Ark. appropriate Code Ann. 25- 19-107(a) (Repl. 1996)(emphasis added). Attorney in his official access to capacity, documents requested FOIA, the and he the denial of his the appealed Pulaski Circuit Court. The County Circuit Court dismissed the appeal on the that the ground General lacked Attorney pro- ceed under the FOIA because he was not a “citizen” within the of the above meaning statutes.

543 issue, and its determined the Court correctly The Circuit be should General’s dismissing Attorney appeal ruling to accom construe the FOIA liberally Although affirmed. “[w]e be business per public its broad laudable purpose plish manner,” Fin. & in an Dep’t formed open 456, Inc., 451, 970 S.W.2d Assocs., 333 Ark. v. Admin. Pharmacy effect 217, our statute by giving 219 task is (1998), interpret in the words the intent of General Assembly expressed v. Cross Wea theAmericanRed law. Sebastian County Chapterof 656, 641 (1993). 311 Ark. 846 S.W.2d therford, ‘what it citizensknow is because The FOIA important “let[s] ” McBride, Ark. is v. their to.’ up Stilley government 125, S.W.2d Department (1998)(quoting Defense 487, FLRA, U.S. added). “[O]penness 497 (1994))(emphasis an in a democratic society,” in essential ingredient government Arkansas Gazette and the FOIA furthers clearly objective. Goodwin, 801 S.W.2d 288 (1990)(Tur ner, J., concurring). Act, however,

The text of Freedom of Information intention of the reveals no on the General Assembly part officer, his official include governmental acting capacity, “citizen,” term is It is within the term as that used in FOIA. used of his the resources undisputed action. It has been office to by lawyers proceed pursued General and who are by employ paid It action the Office State. is an clearly very and not a “citizen” as the FOIA. General by contemplated by of that the had In its support position to under the Arkansas Freedom of Information standing proceed Act, cites cases that the federal Freedom majority interpret are Act. The the federal cases majority says are, however, on the issue. entirely “instructive” standing They inapposite. v. In Massachusetts Public Commonwealth Dep’t Welfare Services, 35 (D. States Health & Human 727 F. United Dep’t Supp. a to dis-

Mass. District Court ordered federal 1989), agency a to the fed- close information state agency requested by pursuant 544 however,

eral Freedom of Information Act. The federal agency, did not assert that the state lacked to agency standing proceed statute, under the thus District Court made no on holding Likewise, the defendant in State Texas v. Interstate point. Comm’n, Commerce 935 F.2d 728 Cir. did (5th not 1991), argue that the State of Texas lacked to information standing request pur- FOIA, suant to the federal and the Fifth Circuit did not address Mink, the issue. In EnvironmentalProtection v. 410 U.S. Agency 75 n.2 (1972), United States Court addressed a fed- Supreme eral FOIA claim Members of a fed- brought by Congress against eral noted of whether the agency specifically question Members could “in their official as proceed Members of capacities was not before the Court. Congress” Even if the federal cases cited majority supported view that or officers have governmental to assert agencies standing claims, cases, federal FOIA the statute those interpreted by U.S.C. for the 552(a) (1994), release of information “to provides not to citizen.” public,” merely case “any Any suggesting or officers have governmental agencies standing proceed a language information on “the conferring right public” simply has no on whether such bearing under lan- parties may proceed a guage information on conferring right “citizens.” The only Arkansas Freedom of Information Act confers a to informa- right citizen,” tion on not “the “any public.” a of “the would representative have a credible public,” likely argu- ment that he had under the used in the standing federal language statute. Under the statute, more limited in the Arkansas language however, the is not a “citizen” and clearly thus lacks standing proceed.

This conclusion is not to Arkansas contrary Hwy. Transp. Works,Inc., Brick Dep’t S.W.2d 711 or Arkansas (1988), Gazette

S.W.2d 350 which are cited in (1975), and concur- majority Works, In ring we held that opinions. a corporation business Arkansas is a doing “citizen” with Co., records to the FOIA. In Arkansas Gazette we held that the Arkansas Gazette Arkansas (an Company corporation) one of its (an had reporters resident) pursue attend meetings entitled that were they under the FOIA claim of Trustees. Board Arkansas the University of committees of the majority the conclusion case Neither supports the Office such as that a governmental concurring opinions office either to request with standing is a “citizen” General Attorney or to 25-19-105(a), Ann. Ark. Code information pursuant § Ann. Ark. Code such pursuant the denial of appeal reporter newspaper The 25-19-107(a). corporations § were Gazette Co. purely and Arkansas Brick Works involved Hope no basis for actors, holding thus those cases supply private under the “citizen” with standing proceed office is a a state FOIA. to state- also allude and concurring opinions majority to the effect Gazette Co. and Arkansas Brick Works

ments Hope information who requests FOIA] “‘anyone’ [under from The statement orginates added). entitled to it” (emphasis case, which concerned in the Arkansas Gazette our decision to attend were entitled “public whether reporters newspaper from an FOIA of Arkansas. Quoting at University meetings” we 25-19-106(b)(l), Ann. at Ark. Code now codified provision shall be each meeting time and regular said that place “[t]he the information.” who furnished to requests anyone at 355. The 522 S.W.2d 258 Ark. at Co. v. Gazette no Co. case has applica- at in the Arkansas Gazette issue provision attend here, does not seek to “open General tion Rather, he 25-19-106. requests meetings” pursuant that confer of documents provisions the disclosure a “citizen.” standing only upon of the cites discussion the concurring opinion

Finally, the Arkansas Free- in a treatise on Brick Workscase leading Watkins, of Information Act. See dom The Arkansas John J. 75-78, ed. (3d 1998). 332-33 Freedom of treatise the concurring Watkins’s supports in Professor Nothing the conclu- Brick Works“compels” statement opinion’s is a “citizen” that the Office of sion fact, from an In the treatise opinion the FOIA. quotes not address that the FOIA “does to the effect or who not review documents virtue of an may official may Id. at 78 No. Gen. position.” (quoting Att’y 89-330). Op. that observation in at two least repeated other See Ark. Gen. Nos. 91-323 and 96- opinions. Op. Att’y 386. It General has since his appears rethought on this issue. position doubt,

No a laudable aim of Arkansas’sFreedom of Informa- tion Act is to citizens with the means of “what provide learning to,” McBride, their is but the government up Stilley supra, major- decision in this case will ity’s with the provide government to,” means of what the learning novel government “up sugges- tion, no law, matter what the context. If that is to be the it, should enact not this Court. Assembly Nothing FOIA that the General suggests intended such Assembly any result.

I dissent. respectfully in this J., joins opinion.

Imber., LOGGING, DUGAL INC. ARKANSAS PULPWOOD

COMPANY, INC., et al. 98-973 983 S.W.2d 126 Court of Arkansas

Supreme delivered December Opinion

Case Details

Case Name: Bryant v. Weiss

Court Name: Supreme Court of Arkansas

Date Published: Dec 21, 1998

Citation: 983 S.W.2d 902

Docket Number: 98-564

Court Abbreviation: Ark.