Can an Arkansas city pay its outside contract attorney for time spent answering FOIA requests, or does the FOIA forbid it?

Plain-English summary

Representative George B. McGill asked four questions, all variations on whether the Arkansas Freedom of Information Act forbids the City of Fort Smith from paying its outside contract law firm (Daily & Woods) for hours spent handling FOIA matters. The factual setup: the City has no in-house legal staff. Daily & Woods bills the City at an agreed hourly rate for actual hours, including hours spent advising on and responding to FOIA requests. Someone had argued that this practice violates the FOIA.

AG Dustin McDaniel reframed the questions and answered all four together. The questions assumed the FOIA applied to the City-attorney billing relationship. The AG said that assumption is mistaken. The FOIA addresses three things in this space:

• It tells custodians how much they may charge an FOIA requester (A.C.A. § 25-19-105(d)).
• It bars passing certain costs through to the requester (A.C.A. § 25-19-105(d)(3)).
• It requires the public entity to absorb certain costs of responding, like personnel time (under specified conditions) and redaction costs (A.C.A. § 25-19-105(f)(4)).

What the FOIA does not address is what a city may pay outside counsel, an employee, or any other contractor for doing FOIA-related work. That is a contracting decision for the city, not an FOIA question.

The AG's bottom line: as long as the outside professional's fees are not passed on to the requester, the FOIA does not come into play, in answer to Questions 1, 2, and 3. As for Question 4 (whether the city may contract for out-of-house manpower to handle a voluminous request requiring extensive redactions), the FOIA does not govern how the City decides to pay for redaction work.

The opinion's analytical move is to deny that FOIA silence equals FOIA prohibition. The act is silent on the City-contractor relationship because that relationship is outside its scope, not because it implicitly forbids the arrangement.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the City have charged the requester for the contract attorney's time?
No. A.C.A. § 25-19-105(d)(3) (as cited in the opinion) restricts what can be passed through to a requester. Attorney fees for time spent reviewing or responding to a request fall outside the categories the FOIA allows to be charged to the requester.

What costs does the FOIA allow a custodian to charge the requester?
The opinion does not enumerate them in detail, but it cites § 25-19-105(d) as the governing subsection. In general, the act permits charges for the actual cost of copying (and certain narrow ancillary items), not staff time or attorney time spent responding.

What if the city had no contract attorney and instead used an in-house employee?
The opinion expressly says the FOIA does not govern how much a city may pay an employee whose primary responsibility is to receive and respond to FOIA requests. Same logic applies: that is a budget/personnel question, not an FOIA question.

Could a taxpayer challenge the City's payment to the contract attorney through some other legal route?
The opinion does not address that. The AG was answering only whether the FOIA prohibited the practice. A separate challenge under general municipal-finance or contracting law would have to stand on its own.

Background and statutory framework

The Arkansas FOIA, A.C.A. § 25-19-101 et seq., creates a public-records framework with carefully delineated cost-allocation rules. The act treats the requester-custodian relationship as the regulated one. The custodian-vendor or custodian-employer relationship is treated as a downstream administrative matter the act does not regulate.

The opinion frames the FOIA's cost provisions as having two prongs:

1. Limits on what custodians charge requesters (the regulated relationship).
2. Affirmative duties for the public entity to absorb certain costs, including personnel time and redaction costs (the unregulated upstream relationship).

A.C.A. § 25-19-105(d)(3) is the linchpin: it confirms that fees of outside professionals cannot be billed through to requesters. The opinion uses that prohibition as the negative inference that the FOIA contemplates outside professionals being paid by the entity, not by requesters.

The opinion does not address whether a city's procurement, contracting, or appropriation laws might independently constrain the City-attorney billing arrangement. Those questions remain open.

Citations

• A.C.A. § 25-19-105(d) (FOIA: costs custodians may charge requesters)
• A.C.A. § 25-19-105(d)(3) (FOIA: outside-attorney fees cannot be passed through to requester)
• A.C.A. § 25-19-105(f)(4) (FOIA: redaction costs absorbed by public entity)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-099

November 4, 2014

The Honorable George B. McGill
State Representative
Post Office Box 3858
Fort Smith, Arkansas 72913-3858

Dear Representative Gill:

You have asked for my opinion regarding the Arkansas Freedom of Information Act (FOIA). You convey the following background for your request:

The City of Fort Smith contracts with Daily & Woods for general legal services. The city has no in-house legal staff. Daily & Woods bills the city for actual hours spent on city matters at an agreed-upon hourly rate. The attorneys of Daily & Woods aren't city employees and are housed in the office space provided and paid by Daily & Woods.

You report that Daily & Woods charges the City of Fort Smith for time spent on FOIA matters, whether advising the city on how to respond to FOIA requests or directly responding to them. Someone has argued that these practices violate the FOIA.

You provide the foregoing background information as context for four questions, all of which are essentially asking whether the foregoing practices violate the FOIA:

1. May the City of Fort Smith's city attorney, who is a contractor and not an employee, bill the City of Fort Smith for time spent responding to FOIA requests made to the city attorney seeking records for which the city attorney is the custodian?

2. May the city attorney bill for time spent advising city officials about FOIA requests received by those officials?

3. If other professional service providers such as architects, engineers, or auditors receive FOIA requests for records for which they are the custodian, may those professional service providers bill the city for time spent responding to the FOIA request?

4. If an FOIA request is so voluminous or requires extensive review for redacting that it requires the city to contract for out-of-house manpower to assist in responding, may the city pay compensation to such contracted service?

RESPONSE

Given the extensive background information you convey, I take all your questions to be built on the assumption that the FOIA applies in the first place. Given that assumption, your questions ask me how the FOIA resolves the questions. But, because the assumption is mistaken, the answer to your questions is neither a "no" nor a "yes." Rather, the answer is that such questions are entirely outside the scope of the FOIA.

In the scenarios described in the background facts and your questions, there are three parties: (1) the FOIA requester, (2) the City, and (3) the outside attorney (or other professional). The FOIA extensively addresses when and how much the FOIA requester may be charged for copies of public records. But the FOIA does not govern when or how much the City may be charged by the outside attorney, just as it does not govern how much a city may pay an employee whose primary responsibility is to receive and respond to FOIA requests for the city. To be clear, I am not saying that the FOIA is merely silent on when and how much the City may be charged by outside counsel. Rather, I am saying that such questions are entirely outside the scope of the FOIA.

The FOIA establishes the rules governing the costs that custodians may charge requesters. The FOIA does make clear that the fees charged by the outside attorneys cannot be passed on to the requester. Of course, when the City contracts for FOIA-related services, the taxpayers essentially shoulder the costs. But the FOIA does not prohibit taxpayers from bearing the costs of public entities responding to FOIA requests. Indeed, the FOIA specifically requires the public entity to absorb certain costs associated with responding to FOIA requests, such as personnel time (under certain circumstances) and costs associated with redactions.

Therefore, in response to your first three questions, as long as the outside professionals' fees are not passed along to the requester, the FOIA does not come into play. Similarly, in response to your fourth question, the FOIA does not govern how the City decides to pay for necessary redactions.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:RO/cyh