The federal government, the District of Columbia, and each of the 50 states have Freedom of Information Act (FOIA) laws that allow individuals to file requests for specific public documents with government agencies and quickly receive them unless the documents are subject to statutory exemptions. As most federal and state FOIA statutes were originally passed in the late 1960s, they impose some duties upon government agencies that many believe no longer make sense in the digital era.

Arkansas Attorney General Tim Griffin is one of those individuals questioning whether today’s FOIA legislation needs to be “modernized” to account for how document retention has changed since the statutes’ drafting. He explained that the last time the state’s FOIA law was updated, “the iPhone hadn’t been invented yet,” and “the use of digital records and new communications technology has increased exponentially, making it possible for public entities to create and retain more records than ever before” and “making responding to FOIA requests more complex and increasing the amount of FOIA requests being lodged with public entities.” As currently drafted, the Arkansas FOIA statute provides agencies with only three business days to respond to a FOIA request — they must produce documents or explain to a requestor why documents will not be produced within that three-day deadline. And while the federal FOIA statute has what some courts call a “safety valve” through which a court can grant an agency additional time to complete its review of records if it is exercising due diligence in responding to the request, many states do not have such an exception.

As such, when an agency fails to produce documents within the specified period — even despite its best efforts to comply — it may face litigation. The Arkansas law, like many others, provides requestors with an immediate right of action against a delinquent agency and makes attorneys’ fees available to a prevailing plaintiff, but for when the agency’s failure to comply with the FOIA law is “substantially justified.”

AG Griffin has appointed a FOIA Review Working Group tasked with reviewing the FOIA statute and providing his office with recommendations on improving the law. State Senator Clarke Tucker, a member of the Working Group, assured citizens that Arkansas’ FOIA statute will remain “one of the strongest laws in the country.” Still, it will be interesting to see how a FOIA statute updated to accommodate a changing technological world may address the new challenges of increased amounts of document retention, and FOIA requests but remain “strong” in the sense that it demonstrates a state commitment to open government. Will Arkansas’ updated law provide the agencies with more time to respond? Will it create a safety valve when the number of requests or documents responsive to a request rises above a certain level? It seems likely that any updates to the law will make it more manageable for responding agencies to comply with their statutory obligations.

And it will be interesting to see if any other states will follow suit. In 2010, the D.C. attorney general sent a letter to the chairman of the Council of the District of Columbia to explain the “concerns expressed by a number of Superior Court judges regarding litigation brought against the District of Columbia” under the FOIA statute, noting that the statute contained no provision for extending an agency’s final deadline for compliance beyond the maximum deadline for 25 business days from receipt of the FOIA request. The AG asked the D.C. Council to consider the addition of a “safety valve” akin to exception in the federal statute, explaining that his “concern” was that a continuing trend of Superior Court rulings against the District of Columbia would “expose to contempt citations our employees tasked with the difficult responsibilities of FOIA compliance and those officials whom the court may find are in a position to affect such compliance” and “expose the District to the payment of attorneys’ fees and costs at a time of severe fiscal constraints.” The D.C. Council did not adopt any amendments to the D.C. statute in response to the AG’s letter. Perhaps 13 years later with the development of even more technology and in the wake of movement in other jurisdictions, the District of Columbia would reconsider its position.

Why It Matters

FOIA requests are a powerful tool for those generally wanting to ensure their government agencies operate fairly and correctly. They have also become an important tool for companies subject to investigations by or engaged in litigation with governmental agencies. As states and the federal government begin modernizing their FOIA laws, it will be interesting to see how those changes affect the value of FOIA requests as a tool for companies subject to government actions.