The Struggle is Real: Leslie Rutledge Misses On Another FOIA Opinion

Traditionally, Attorney General’s opinions — especially in the area of the Arkansas Freedom of Information Act — were drafted by someone in the AG’s office and concluded with language to the effect of “Deputy Attorney General _______ prepared this opinion, which I approve.” They were then signed by the Attorney General. Rare was the FOIA-related AG’s opinion that was actually penned by the AG.
Since taking over that office, however, Attorney General Leslie Rutledge has apparently decided that no one should get any credit for her “opinions” other than Ms. Rutledge herself, as nearly all FOIA-related opinions now simply conclude, “Sincerely, Leslie Rutledge, Attorney General.”
The thing is, the FOIA-related opinions coming out of that office these days are starting to make me wonder if perhaps Ms. Rutledge really is writing them. At least that would explain some of the complete lack of insight or analysis that has begun popping up.
Case in point, yesterday Ms. Rutledge issued an opinion on the time frame for releasing certain electronic or digital records under the FOIA. In that opinion, she addressed the “three day” provision under Ark. Code Ann. 25-19-105(e), which provides for disclosure within three days “[i]f a public record is in active use or storage and therefore not available at the time a citizen asks to examine it.” She opined that “most records” are going to be either in active use or storage, so the three-day provision should generally apply.
While she is not the first person, Attorney General or otherwise, to make this mistake–indeed, the idea that an agency has three days to respond to any request has become commonly accepted by most folks–she is still incorrect. Worse, she doubled-down on her incorrect understanding of subsection 105(e), writing:

Additionally, I will add that this question seems to presuppose that the dispositive factor in determining whether a record is in active use or storage is how difficult it is to access the record. Nothing in the text of the FOIA or in Arkansas’s appellate case law supports such a presupposition.
Further, there are good grounds to think this presumption is false. For, presumably, when a record is in active use, there is no difficulty in making a copy of the record to disclose to the requester. After all, the record is readily at hand. Thus, if “difficulty-of-reproduction” were the dispositive test, then custodians would have to immediately disclose records that were in active use. But the FOIA does not require such a scenario, in part because this might disrupt the agency’s performance of its duties.

Based on this analysis, I can only assume that Ms. Rutledge is unfamiliar with statutory construction generally.
First, as the Supreme Court has explained, when you are dealing with a statute that is ambiguous, “the basic rule of statutory construction, to which all other interpretative guides are really subordinate, is to give effect to the legislative intention.”[footnote]Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).[/footnote] Statutes are to be read as a whole and interpreted in a manner that makes all parts harmonious if possible.[footnote]See generally Ortho-McNeil-Janssen Pharms., Inc. v. State, 2014 Ark. 124, 432 S.W.3d 563.[/footnote] Additionally, as is relevant here, one of the primary rules of interpreting a statute is to “construe the statute so that no word is left void, superfluous or insignificant, and [to] give meaning and effect to every word in the statute, if possible.”[footnote]City of Little Rock v. Jung Yul Rhee, 375 Ark. 491, 292 S.W.3d 292 (2009).[/footnote]
With those canons in mind, we can address the language of Ark. Code Ann. 25-19-105(e). First off, we know with 100% certainty that the legislative intent behind the FOIA is so that “public business [will] be performed in an open and public manner.”[footnote]See Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004).[/footnote] To help effectuate this goal, the courts have consistently interpreted the provisions of the FOIA in favor of more access and more disclosure.[footnote]See, e.g., McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).[/footnote]
Turning then to the specific language of subsection 105(e), it becomes clear that Ms. Rutledge’s position–that more or less all records will either be in active use or in storage–renders much of subsection 105(e) superfluous. If all records are going to fall into one of those categories, then there is no reason for the statute to specify those two categories, rather than simply saying that all responses shall be made within three business days. Moreover, Ms. Rutledge’s analysis ignores that 105(e) creates a two-pronged test before the three-day response time is triggered.
Under 105(e), an agency has three business days to respond where (1) a public record is in active use or storage AND (2) the record is therefore not available at the time a citizen asks to examine it. Thus, even if a record is in active use or storage, it must still be provided more or less immediately upon request if it is not unavailable to the custodian.
Taken as a whole, the drafters of 105(e) clearly envisioned that some records would not fall into active use or storage (or, if they did, would still not be unavailable) and would, therefore, be available more or less immediately. Thus, the statute creates three separate classes of records under this subsection:

1. Active use. The record is literally being used by someone in the office for some work-related purpose, which makes it unavailable to the custodian at the time of the request. Think credit-card receipts being used by a bookkeeper to balance the books at the end of a quarter.
2. Storage. The record is kept in a place or manner that makes near-immediate access impossible or impracticable. For example, records that are stored offsite or records that are in some kind of bulk storage in the office and are not properly indexed.
3. In the office, but either not in active use or storage or–if in active use or storage–not unavailable. Basically, this would be every record that is in a file cabinet or other easily accessible location within the office.

Unlike Ms. Rutledge’s approach, this three-tiered classification of records under 105(e) makes the “active use or storage” clause and the “therefore not available” clause have meaning, and it gives effect to the intent behind the FOIA generally by making more records available more quickly. This is because, contrary to the AG’s opinion, it is not true that most records will either be in active use or in storage; most records will be in that third category, in the office and readily accessible to the custodian when he or she receives a request.
Because, 105(e) only gives three business days for a response when the records are in one of the first two categories, a typical request for readily available records would not be subject to the three-day response period. Those records should be provided more or less immediately, particularly when the requested records are not voluminous.
Finally, and at the risk of belaboring the point, an additional comment is warranted in response to Ms. Rutledge’s opinion that:

if “difficulty-of-reproduction” were the dispositive test, then custodians would have to immediately disclose records that were in active use. But the FOIA does not require such a scenario, in part because this might disrupt the agency’s performance of its duties.

While she is correct that the test does not hinge on the difficulty of reproduction, she is wrong as to her conclusion that she derives from that example.
Again, the test is (1) is the record in active use or storage (bearing in mind that most records are not) and, (2) if it is in active use or storage, does that make the record unavailable to the custodian at the time he receives the request? Only where the answer to both parts is yes is the custodian allowed up to three business days to respond.
Likewise, she is wrong that the active-use part of 105(e) applies where making a copy “might disrupt the agency’s performance of its duties.” If retrieving the record from active use would “disrupt the agency,” then, arguably, that record is unavailable due to being in active use. But it is the unavailability–for whatever reason–stemming from the active use that is dispositive.
On its own, Ms. Rutledge’s mistake on this portion of the FOIA probably would not be a big deal. After all, this is an (incorrect) conclusion that is commonly accepted by most people. However, this isn’t the first time that a FOIA-related opinion from this Attorney General has been woefully incorrect.
If she really is writing these opinions herself these days, maybe she should go back to delegating that task.