Opinion No.

The Honorable Stuart Vess State Representative 6717 Pontiac Drive North Little Rock, AR 72116-5232

Dear Representative Vess:

You have requested an Attorney General opinion concerning the release of probation files under the Freedom of Information Act (A.C.A. § 25-19-101et seq.)

You question is:

Are probation files that are being held by a private contractor, working for a municipal judge, open under a request made pursuant to the Freedom of Information Act?

It is my opinion, as explained more fully below, that such files are open under the Freedom of Information Act (FOIA), unless they are the records of a first offender who is governed by the provisions of A.C.A. §16-93-301 et seq., and are therefore subject to expungement.¹

The FOIA sets forth a list of documents that are excepted from its requirement of disclosure. Probation files are not included in the list of excepted documents. That is, the FOIA makes no exception for probation files. See Ops. Att'y Gen. Nos. 91-437; 89-080; 89-028.

Such files can, however, be excepted from the requirement of disclosure if they are records that are governed by the provisions of A.C.A. §16-93-301 et seq. That set of statutes provides for the expungement of the records of certain first offenders. It should be noted that this exemption will apply only after the expungement has been entered.

The fact that the files are in the possession of a private contractor does not render them exempt from the FOIA. Private entities are subject to the FOIA if they are supported wholly or in part by public funds, if they engage in activities that are of public concern, and if they carry out business that is intertwined with the business of the government.See Ops. Att'y Gen. Nos. 97-141; 96-267; 96-123; 94-023; 91-282. Moreover, the Attorney General has consistently taken the position that the location of public records does not affect the records' disclosability under the FOIA. See Ops. Att'y Gen. Nos. 92-237; 91-323; 91-100. See also Op. Att'y Gen. No. 98-223. I continue to hold that position.

For the foregoing reasons, I conclude that probation files that are being held by a private contractor who is working for a municipal judge are subject to release under the FOIA, unless they are records that are subject to expungement under A.C.A. § 16-93-301 et seq.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:SA/cyh

¹ It should be noted that records concerning individuals who are under the supervision of the Department of Community Punishment are not open. A.C.A. § 12-27-125(b). However, the Department of Community Punishment does not oversee municipal court probation cases.