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AAC F A M I L Y & F R I E N D S


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Electronic records are subject to FOIA requests in some cases


T


he Arkansas Freedom of Informatin Act applies to electronic records ... if “readily convertible” without significant cost in public resources.


If “Readily Convertible,” Electronic Data Subject to FOIA:


If requested electronic data is “readily convertible,” then the public official is required to comply with the request under A.C.A. § 25- 19-105(d)(2)(B), which requires that a citizen must be provided data “in any format to which it is readily convertible with the cus- todian’s existing software.” Ark. AG Op. No. 2004-023.


If NOT“Readily Convertible,” Electronic Data is Not Sub-


ject to FOIA: A.C.A. 25-19-109(a)(1) permits the custodian of the records, at his or her discretion, to compile, tailor or sum- marize requested electronic data in an electronic format if it is not readily convertible ... BUT ... if it is properly determined that re- quested electronic data is not “readily convertible,” the public of- ficial has no obligation to comply with the FOIA request. Ark. AG Op. No. 2004-023.


“Readily Convertible” Defined: A.C.A. 25-19- 105 (d) (2) (B) and A.C.A. 25-19-109 were enacted based on a report by the Electronic Records Study Commission (“Commission”) and this report offers insight into the intent of these provisions. Te Com- mission notes that “[i]n many cases, it is relatively easy and cost- free to ... convert [an electronic record] from one common format to another.” By contrast, significantly greater customization of electronic records is often possible, but only with substantial effort.


Option of Hiring Private Contractor: Where the cost and


time involved in complying with the requests are relatively mini- mal, custodians should agree to provide the electronically recorded data as requested. A.C.A. 25-19-109(a)(2). 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). A.C.A. 25-19-109(b)(1).


(Mike Rainwater, a regular contributor to County Lines and


lead attorney for AAC Risk Management, is principal shareholder of Rainwater, Holt, and Sexton, P.A., a state-wide personal injury and disability law firm. Mr. Rainwater has been a lawyer for over 30 years, is a former deputy prosecuting attorney, and has defended city and county officials for over 25 years.)


Polk County Clerk’s office staff display color of support on Pink Friday


Those visiting the Polk County Clerk’s of- fice on May 3 were reminded to Think Pink. Staffers wore the rosy tone as a show of support for breast cancer survivors and the continuing research for a cure. Pictured are: (front row) Sarah Gibson, Elicia Field, Alyssa McCleskey and Lis Robinson; (second row) Paula Clark, Sue Babel, Kim Milne, Melody McDaniel and Kerry Law: (third row) James Reeves, June Wiles, Linda Ashcraft, The- resa Judkins, Lana Rice, Laura Logan, Polk County Clerk Terri Harrison, Lisa Bingham, Judy Logan and Sherri Roberts.


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. Electronic data is “readily convertible” when the conver- sion can be done without significant cost in public resources. Ark. AG Op. No. 2004-023.


County Law Update


Mike Rainwater Risk Management Legal Counsel


14


COUNTY LINES, SUMMER 2014


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