Opinion No.
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Ms. Holly Felix, MPA 807 Shea Drive Little Rock, AR 72205

Dear Ms. Felix:

You have asked for my opinion, pursuant to A.C.A. § 25-19-105(c)(3)(B), concerning a request for employment-related information that has been submitted to the City of Little Rock under the Arkansas Freedom of Information Act ("FOIA") (A.C.A. § 25-19-101 through -109) (Repl. 1994 Supp. 2003 Acts 2005, No. 295). As you note, the FOIA requester in this instance seeks employment information regarding fifty named employees for the period from January, 2000, to the present. Although you are named in this list, you note further that you resigned from the City in September, 1999, and that you have not worked for the City since that time. Consequently, it is your view that the City has no records that are responsive to this FOIA request as it pertains to you. You state that you conveyed this information to the records' custodian and were told that an opinion from this office would be necessary.

RESPONSE

The issue of whether the City keeps or maintains records that are responsive to this FOIA request as it pertains to you individually requires a factual determination within the purview of the records custodian.1 I do not know what decision the custodian has made, as the only information I have in this regard is your statement that the custodian has advised you of the need for an Attorney General opinion.2 But in any event, I am not in a position to make the factual determination that will ultimately decide this matter.

I will note that if the only relevant facts are those stated in your correspondence to this office, then it would seem that the City has no records that are responsive to this request and that the custodian may respond accordingly. The possibility that other facts may bear on the question prevents me, however, from opining definitively. I note in particular that the FOIA does not require requests for records to be in writing. Accord Op. Att'y Gen. Nos. 2001-052 and 96-354. Because nothing in the FOIA prevents a requester from supplementing a written request, and because I am unaware of the custodian's decision in this instance, I cannot opine whether a decision was made consistent with the FOIA.

While I cannot resolve this issue due to its factual nature, this discussion will hopefully be of some assistance in guiding the analysis.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:EAW/cyh

1 As regards the substantive FOIA request in this instance, i.e., the request for the fifty named individuals' employment-related information, please note that I recently addressed that matter in Attorney General Opinion No. 2005-100.

2 The above-referenced Code section, A.C.A. § 25-19-105(c)(3)(B), directs me to opine whether the custodian's decision as to the release of personnel or evaluation records is consistent with the FOIA.