Judges: MIKE BEEBE, Attorney General
Filed Date: 2/24/2004
Status: Precedential
Modified Date: 7/5/2016
The Honorable Robert L. Herzfeld, Jr. Prosecuting Attorney Twenty-Second Judicial District 102 South Main Street Benton, AR 72015
Dear Mr. Herzfeld:
You have asked for my opinion concerning a Freedom of Information Act (FOIA) request that has been submitted to the Saline County Tax Assessor. You state that a request has been made for ". . . a copy of the database and all associated files (pictures, etc.) that are available via the public access terminals . . . in Microsoft Access format." As further background for your questions, you state:
This information is only available through a private contractor from which the software was purchased prior to July 1, 2001, and is maintained by the contractor. The assessor's office has no personnel with the necessary skills or abilities to compile this information in the requested form. The volume of information is too great to be provided other than on an electronic tape. The contractor has stated its charges at $125.00 per hour for an estimated 2 hours plus a $65.00 charge for an electronic tape. The requester objects to these charges.
Your specific questions are as follows:
1. Since this is a request for electronic information, is the assessor required, under Ark. Code Ann., Section
25-19-109 (a) (1), to furnish it by hiring it done by a private contractor?2. If the answer to question number one is yes, and in light of current security concerns, is the requester entitled to pictures, drawings, as well as, appraiser's notes regarding whether or not taxpayers were at home at specific times of the day?
3. If the answer to question number one is yes, must the home addresses of nonelected state employees, nonelected municipal employees, and nonelected county employees be deleted although the assessor is not their employer? [Section
25-19-105 (b) (13)]?4. If the answer to question number one is yes, may the contractor delete certain proprietary files, i.e., the data dictionary?
5. If the answer to question number one is yes, does Section
25-19-109 (b) (2) mean that the assessor may charge for the lowest price of the private contractor or does it mean the lowest paid employee of the private contractor?
RESPONSE
Although it is somewhat unclear from the information provided, it appears that the custodian of the records has determined that A.C.A. §
While the factual nature of the question prevents me from determining which of these Code sections applies in this instance, I will address your questions to provide guidance under both provisions.
Question 1 — Since this is a request for electronic information, is theassessor required, under Ark. Code Ann., Section
The applicability of A.C.A. §
(a)(1) At his or her discretion, a custodian may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible.
(2) Where the cost and time involved in complying with the requests are relatively minimal, custodians should agree to provide the data as requested.
(b)(1) If the custodian agrees to a request, the custodian may charge the actual, verifiable costs of personnel time exceeding two (2) hours associated with the tasks, in addition to copying costs authorized by §
25-19-105 (d)(3).(2) The charge for personnel time shall not exceed the salary of the lowest paid employee or contractor who, in the discretion of the custodian, has the necessary skill and training to respond to the request.
(c) The custodian shall provide an itemized breakdown of charges under subsection (b) of this section.
A.C.A. §
This provision permits (and indeed, appears to encourage) the custodian of the records, at his or her discretion, to compile, tailor, or summarize requested electronic data in an electronic format to which it is not readily convertible. Another FOIA provision requires, on the other hand, that a citizen must be provided data "in any format to which it is readily convertible with the custodian's existing software." A.C.A. §
We do not yet have the benefit of case law interpreting A.C.A. §§
By contrast, significantly greater customization of electronic records is often possible, but only with substantial effort. Whether that effort is undue could vary widely among entities subject to the FOIA, depending not only upon equipment and personnel, but also upon how data is maintained for its efficient use in the agency's principal mission. In short, what is possible is not always practical. Therefore, paragraph (3) (C) [enacted, with some modification, as §
25-19-109 ] authorizes, but does not require, custodians of electronic public records to go beyond the more mundane conversions required by paragraph (3) (B) [§25-19-105 (d) (2) (B), supra] when doing so is practical and without significant cost in public resources. . . .
Commission Report, supra, at 29.
With regard to the particular request in this instance, you have stated that the requester objects to the contractor's charge of $125.00 per hour for two hours, suggesting that the assessor has determined that §
If, however, A.C.A. §
Except as provided in §
25-19-109 or by law, any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.
An itemized breakdown is also required under this Code section. A.C.A. §
Question 2 — If the answer to question number one is yes, and in light ofcurrent security concerns, is the requester entitled to pictures,drawings, as well as, appraiser's notes regarding whether or nottaxpayers were at home at specific times of the day?
As you can see from the foregoing discussion, the answer to Question 1 will never be "yes," if that question is read literally, because the assessor is not required under A.C.A. §
If, on the other hand, it is determined that A.C.A. §
Question 3 — If the answer to question number one is yes, must the homeaddresses of nonelected state employees, nonelected municipal employees,and nonelected county employees be deleted although the assessor is nottheir employer? [Section
This question is also confusing, for the reasons stated above. If the assessor has the discretion to comply with the FOIA request in this instance because A.C.A. §
Question 4 — If the answer to question number one is yes, may thecontractor delete certain proprietary files, i.e., the data dictionary?
Again, as discussed in response to Question 2, if the assessor has thediscretion to comply with the FOIA request in this instance because §
Question 5 — If the answer to question number one is yes, does Section
Subsection (b) (2) authorizes a charge based on the "lowest paid . . . contractor." It states:
The charge for personnel time shall not exceed the salary of the lowest paid employee or contractor who, in the discretion of the custodian, has the necessary skill and training to respond to the request. [Emphasis added.]
There is no reference to the lowest paid employee of a contractor. The term "employee" refers, in my opinion, to agency personnel and not to an employee of a contractor who performs the task involved in responding to a "special request" under §
A question may remain, however, regarding the particular "contractor" charge. Your question suggests that the assessor might charge for the "lowest price of the private contractor," and I assume from the background information you provided that this refers to the private contractor from whom the software was purchased. If this contractor's "lowest price" does not exceed the amount that would be charged by a contractor with comparable ability to perform the task, then I believe this would be a permissible charge. This follows, in my opinion, from the requirement that the charge "shall not exceed the salary of the lowest paid . . . contractor" with the skill for the task. A.C.A. §
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:EAW/cyh