Can an Arkansas employment background-check company use a FOIA request to get a person's district court records, or can the clerk refuse under Supreme Court Administrative Order 19?

Plain-English summary

Senator Jeremy Hutchinson explained that companies running employment background checks routinely sent FOIA requests to district court clerks asking for court records of prospective employees, one to fifteen names at a time. A growing number of clerks were refusing, saying the requests really amounted to "bulk distribution" or "compiled information" governed by Supreme Court Administrative Order 19 instead of the FOIA. He asked whether Order 19 applied at all, and if so, whether it gave the clerks a basis to say no.

AG Leslie Rutledge answered yes on the first question and "it depends" on the second. Order 19 is the dedicated court-records procedure for circuit, district, and city courts. Its general rule grants public access to court records, but that access is "subject to" Sections V through X of the order. The records of specific individuals fit Order 19's definition of "case record," so the order applies.

Section VI is the kicker. It treats any "information that is derived from the selection, aggregation or reformulation of information from more than one court record" as "compiled information." A background-check company asking for records on a list of individuals is selecting and aggregating across multiple cases. To receive that information, the requester has to complete a license agreement under Section VI(B)(5) certifying that the request is for a "scholarly, journalistic, political, governmental, research, evaluation, or statistical purpose" and that identifying specific individuals is essential to that purpose. Most commercial background-check work cannot honestly make those representations, so under Order 19 they are not entitled to the records.

Whether a particular company can make the certification is a fact question. The forum for resolving it is not the courthouse FOIA enforcement track. Section VI(B)(5) routes appeals to the Arkansas Supreme Court Committee on Automation.

Currency note

This opinion was issued in 2016. 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.

Background and statutory framework

Order 19's place in the records access scheme

Order 19 was the Arkansas Supreme Court's framework for public access to court records. It treated the FOIA as a "gap-filler" only: "Except as otherwise provided by this order, access to court records shall be governed by the [FOIA]." Whenever Order 19 spoke to a question, Order 19 controlled. When it was silent, the FOIA took over.

The order's threshold definition of "court record" reached "any document, information, data, or other item created, collected, received, or maintained by a court, court agency or clerk of court in connection with a judicial proceeding" (§ III(A)(2)). That swept in the records of individual cases that background-check companies wanted.

The "compiled information" trigger

The order pulled records that crossed case boundaries into a separate track. Section III(A)(10) defined "compiled information" as information derived from "the selection, aggregation or reformulation of information from more than one court record." A request that listed several individuals and asked for any records on each of them met the definition, because the clerk had to aggregate across files to respond.

Section VI then imposed three things on compiled-information requests:

1. The clerk could disclose only if the requester completed a license agreement.
2. The requester had to certify a qualifying purpose (scholarly, journalistic, political, governmental, research, evaluation, or statistical).
3. The requester had to certify that identifying specific individuals was essential to that purpose.

Commercial employment background checks generally cannot honestly certify a "scholarly, journalistic, political, governmental, research, evaluation, or statistical" purpose, which is why the clerks had begun refusing.

Appeal route

The AG flagged that the forum for these disputes was not the standard FOIA enforcement track (which lets a requester sue in circuit court for denial of access). Section VI(B)(5) directs disagreements to the Supreme Court Committee on Automation. That changed the practical landscape: a background-check company that wanted to push back had to take its case to a Supreme Court committee, not a trial judge.

Common questions

Q: Were the clerks right to refuse these FOIA requests?
A: The AG did not bless every refusal categorically. He said Order 19 applied (so the FOIA gap-filler did not control on its own) and that Section VI governed. Whether a specific refusal was correct depended on whether the requester could honestly sign the Section VI(B)(5) license certification. That was a fact question for the clerk and, on appeal, the Committee on Automation.

Q: What kinds of background-check requests would qualify?
A: A bona fide academic researcher studying conviction rates, a journalist writing about a specific public-corruption story, a state agency running statutorily authorized vetting, or a political committee researching opposing candidates could potentially fit. A for-profit company performing routine pre-hire screening for private employers would have a much harder time fitting the listed purposes.

Q: Was this a FOIA case or a court-records case?
A: Functionally a court-records case. Order 19 carved out court records from the standard FOIA flow whenever Order 19 spoke. The FOIA still applied to anything Order 19 left uncovered.

Q: Did this opinion address other ways to get individual court records?
A: Not directly. A requester could still walk into a clerk's office and ask for a single named individual's case file under the order's general access rule, which is distinct from the compiled-information procedure. The compiled-information rules engaged only when the request reached across more than one record.

Citations and references

Court rules:

• Supreme Court Administrative Order 19, § I(A) (FOIA as gap-filler)
• Supreme Court Administrative Order 19, § III(A)(2) (definition of "case record")
• Supreme Court Administrative Order 19, § III(A)(4) (application to circuit, district, and city courts)
• Supreme Court Administrative Order 19, § III(A)(10) (definition of "compiled information")
• Supreme Court Administrative Order 19, § IV(A) (general public-access rule subject to §§ V-X)
• Supreme Court Administrative Order 19, § VI(B)(5) (license certification and appeal to Committee on Automation)

Source

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

Official summary

(Q1) Does Supreme Court Administrative Order 19 ("Order 19") apply to Freedom of Information Act ("FOIA") requests for the court records of specific individuals for the purpose of performing employment background checks? (Q2) If so, does Order 19 provide a legal basis for court clerks to reject such FOIA requests? RESPONSE: The answer to your first question is "yes" because the Order 19's definitions include the court records of specific individuals. Therefore, in response to your second question, Order 19 must be consulted to determine whether the requested records may be disclosed. Whether Order 19 does in fact exempt the records' disclosure will depend on the specific FOIA request at issue. As explained more fully in the opinion, a FOIA requester who disagrees with the district-court clerk's decision may appeal the clerk's decision to the Committee on Automation.

Original opinion text

Opinion No. 2015-121
April 14, 2016
STATE OF ARKAN SAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Jeremy Hutchinson
State Senator
201 East North Street
Benton, Arkansas 72015
Dear Senator Hutchinson:
You have asked for my opinion on the relationship between the Arkansas Freedom
of Information Act (FOIA) and Supreme Court Administrative Order 19. You
provide the following background for questions:
Companies that provide background-check services for employers
routinely make FOIA requests to district-court clerks for the court
records of prospective employees of their clients. In making these
requests, the background-check companies provide the court clerks
with identifying information for between one and fifteen individual
prospective employees and request the court records, if any, for
those specific individuals. An increasing number of district-court
clerks are rejecting FOIA requests for these court records stating that
pursuant to Order 19 they are not required to provide the requested
court records. The rejections are based on the belief of the court
clerks that such requests are requests for "bulk distribution" or
"compiled information" as defined in Section III of Order 19 and are
therefore subject to Section VI of Order 19 and not the FOIA.
With this background in mind, you ask:

1. Does Administrative Order 19 apply to FOIA requests for the court records
   of specific individuals for the purpose of performing employment
   background checks?
2. If so, does Administrative Order 19 provide a legal basis for court clerks to
   reject such FOIA requests?
   RESPONSE
   The answer to your first question is "yes" because the Order 19's definitions
   include the court records of specific individuals. Therefore, in response to your
   second question, Order 19 must be consulted to determine whether the requested
   records may be disclosed. Whether Order 19 does in fact exempt the records'
   disclosure will depend on the specific FOIA request at issue. As explained more
   fully below, a FOIA requester who disagrees with the district-court clerk's
   decision may appeal the clerk's decision to the Committee on Automation.
   DISCUSSION
   Order 19, which deals with how people can obtain court records, establishes a
   procedure that is independent of the FOIA. And the Order only uses the FOIA as
   a "gap-filler," stating: "Except as otherwise provided by this order, access to court
   records shall be governed by the [FOIA]." Under this framework, any answer to
   your questions requires answers to two threshold issues: (1) whether the records
   at issue here fall within Order 19's definitions; and (2) if so, whether Order 19
   exempts them from disclosure upon request.
   The answer to that threshold question is "yes." Order 19, which applies to circuit,
   district, and city courts, establishes the general rule that "[p]ublic access shall be
   granted to court records," but that access is limited by Order 19's "sections V
   through X." For purposes of Order 19, the term "court record" includes, among
   other things, a "case record," which is any "document, information, data, or other
   item created, collected, received, or maintained by a court, court agency or clerk
   of court in connection with a judicial proceeding."
   Because the records at issue in your questions seem to fall within Order 19's key
   threshold definitions, the Order requires their disclosure "subject to the limitations
   of sections V through X." Section VI contains the "limitations" governing
   disclosure of "compiled information," which means "information that is derived
   from the selection, aggregation or reformulation of information from more than
   one court record."
   Section IV establishes a detailed and lengthy process governing requests for
   compiled information. Under that process the requesters are only entitled to the
   information if they complete a license agreement certifying (1) that the request is
   made for a "scholarly, journalistic, political, governmental, research, evaluation,
   or statistical purpose," and (2) that the "identification of specific individuals is
   essential to the purpose" of the request. Under Order 19, requesters who need
   information on specific individuals and who cannot make these representations are
   not entitled to compiled information. If a requester of individual information
   believes that the clerk is not complying with Order 19's requirements, that
   requester may appeal the clerk's decision to the Supreme Court Committee on
   Automation.
   The answer to your second question turns on whether the background-check
   companies are able to make the foregoing representations. This is a fact question
   that should be resolved by the Supreme Court Committee on Automation.
   LESLIE RUTLEDGE
   ATTORNEY GENERAL