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Access to Arkansas public records: why you (probably) don't have it, and how we got it

In 2013 the Supreme Court of the United States issued its opinion in McBurney v. Young, 569 U.S. 221 (2013).*

Mark McBurney was a citizen of Rhode Island and a former resident of Virginia, where his son lived. When McBurney's wife defaulted on her child support obligations, McBurney asked the Virginia Division of Child Support Enforcement (VDCSE... a mouthful) to file a petition for child support enforcement on his behalf. After a nine-month delay, the petition was filed and granted. McBurney then filed a Virginia Freedom of Information Act (VFOIA) request with the VDCSE for all records pertaining to his son and ex-wife. A bit convoluted, but pretty straightforward, right? 

Wrong.

The VDCSE denied McBurney’s request, arguing that the information was confidential, and - more importantly - that McBurney was not a citizen of Virginia, and was therefore not entitled to the information. While McBurney eventually obtained most of the information he was seeking through other sources - an often-fruitful strategy - he never got all of the information from his VFOIA request. So he sued. First McBurney sued in Virginia district court. The actual legal arguments are beyond the scope of this writing. All that you need to know is that the district court ruled against McBurney. Undeterred, McBurney and two others appealed their VFOIA denials to the U.S. Court of Appeals for the Fourth Circuit, who upheld the district court ruling. At that point McBurney filed a petition for a writ of certiorari — asking the Supreme Court to hear his case. The Supreme Court agreed, and for good reason: conflicting lower court rulings needed to be resolved.

Although McBurney had lost in Virginia, the U.S. Court of Appeals in Philadelphia had already struck down the citizenship requirement in Delaware’s public records law.

Things did not go well for McBurney at the Supreme Court. In a unanimous opinion, the Supreme Court ruled against McBurney, upholding Virginia and all other states' right to restrict public records requests to their own residents. What that practically means right now is that unless you live in Alabama, Arkansas, Delaware, Tennessee, Virginia, or Nebraska, you are not entitled to any public records from those states. And this isn’t some technicality. You won’t get them. 

That’s not to say that state residents will get the records they request. It simply means that they can’t be turned away at the door. Their request has to at least be processed. If you want to know what 'getting turned away at the door' looks like, there are some relevant screen shots above.

Now I am going to tell you how we solved the Arkansas Problem.

The Problem: I wanted records from Arkansas, and I wasn’t legally entitled to them. If you are not a resident of Arkansas, you aren’t either.

But that doesn't mean you're SOL. People facing The Problem have an option: find an Arkansas resident who is willing to serve as a proxy and submit requests on their behalf. I have done that on a number of occasions, but it’s far from ideal. Coordination can be tough, because most records custodians will only work with the proxy. That means conversations going through a middleman, paying fees through a middleman, and even getting the actual records through a middleman. It means taking up someone else’s time, and it means telling someone else about the stories that you are investigating — which is a great way to lose your story. In this business, being first matters.

But that's not the only option. 

In 1988 the Arkansas Supreme Court addressed a sort-of-similar question to that of  McBurney v. Young. The case was Arkansas Highway and Transportation Department v. Hope Brick Works, Incorporated. In Hope Brick Works, the plaintiff, a corporation doing business in Arkansas, requested real-estate appraisals forming the basis for the highway department’s offer to purchase the plaintiff’s land. The department provided certain records that supported the price it was willing to pay but refused to disclose (a) documents showing comparable sales, (b) the appraisers’ notes, and (c) interviews with landowners. The circuit court ordered full disclosure, and the Supreme Court affirmed.

In an opinion by Justice John Purtle, the Court rejected the department’s argument that the plaintiff was not a “citizen” for Arkansas FOIA purposes. After pointing to Section 25-19-102 of the AR FOIA (which provides that the Act was adopted so that “electors … or their representatives” could learn of the activities of public officials) Justice Purtle wrote:

Obviously, a representative of the [plaintiff corporation] is entitled to receive any information that any other person would be entitled to receive pursuant to the [FOIA]. The overall intent of the Act seems clearly to include a corporation doing business in this state as being a party entitled to information pursuant to the Act.

The Hope Brick Works case stands for the fact that a foreign corporation qualifies as a “citizen” for Arkansas FOIA purposes, so long as it does business in the state.

And so, on December 9th, 2019, Real World Media became a citizen of Arkansas.**

~~~

Real World Police: The Youtube channel with footnotes

* A PDF containing the case syllabus, opinion of the court, and a concurrence by Justice Thomas is attached to this post. Also attached are two audio files. One contains the opinion of the court, read by Justice Stevens. The other is a recording of oral arguments before the Court in McBurney v. Young.

** I don't think I'm that dumb, but I have never had as much trouble paying someone money as I have in relation to the Arkansas' foreign LLC filing and franchise tax fees.

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Real World Police

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