Can a city's Advertising and Promotion Commission staff see business-by-business hotel/restaurant tax data that's exempt from FOIA?

Plain-English summary

The Fayetteville Advertising and Promotion Commission collects a one-cent hotel, motel, and restaurant tax under the Advertising and Promotion Commission Act. Per-business collection numbers are exempt from disclosure under the Arkansas FOIA, Ark. Code Ann. § 25-19-105(b)(23)(A). Representative David Whitaker asked whether the city could legally share that exempt data with the Commission's Executive Director and Financial Analyst, and whether they in turn could share it privately with individual commissioners.

The AG's answer turned on a distinction often overlooked: the FOIA exemption blocks public release, but it does not by itself answer who within a public body can see exempt records. The exemption keeps records out of the hands of "any citizen of the State of Arkansas." It is silent on whether a particular official, by virtue of their position, has access through statutory authority or in the course of official duties.

Reading the FOIA together with the Advertising and Promotion Commission Act, the AG concluded:

The Executive Director and Financial Analyst are not statutory positions. The Act doesn't name them. So they don't get access just because of their titles. But the Act gives the Commission itself broad authority to collect and enforce the tax. Anyone authorized to act on the Commission's behalf, including staff hired to do collection-and-enforcement work, plausibly needs the data to do that job. Whether these specific positions have those duties is a factual question the AG could not resolve.

Individual A&P commissioners, by contrast, have no individual statutory powers. Their access to per-business tax data does not flow from being a commissioner alone. It might flow from acting properly on behalf of the Commission, which again is a fact-specific inquiry.

Currency note

This opinion was issued in 2017. 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

Arkansas cities of certain classes can levy a hotel, motel, and restaurant tax under Ark. Code Ann. § 26-75-601 et seq., known as the Advertising and Promotion Commission Act (or "A&P Act"). The tax revenue funds the city's Advertising and Promotion Commission, which is responsible for collecting it and enforcing the levy.

Ark. Code Ann. § 25-19-105(b)(23)(A) shields per-business HMR tax collection numbers from FOIA disclosure. The same statute clarifies in subsection (B) that aggregate, citywide collection totals remain public; the exemption is for the breakouts that would identify individual business sales.

The AG's analysis relied on a long-recognized distinction. As the leading Arkansas FOIA commentators (Watkins, Peltz-Steele, and Steinbuch) put it: "some officials may obtain access to exempt records by virtue of statutory authority, or subpoena power, or otherwise in the course of their official duties." FOIA exemptions don't draw a perimeter around the records that no government employee can cross; they keep records out of public-disclosure channels.

For per-business HMR data, the AG's office had no statutory hook tied to the Executive Director or Financial Analyst job titles. Those positions are creatures of local Commission practice, not the A&P Act. Whether either holds delegated authority from the Commission to access tax data while doing collection or enforcement work is a question of how Fayetteville's Commission has structured its operations.

For individual commissioners, the AG took a stronger position. Section 26-75-603 talks about Commission action "by and in the name of the commission through the proper commission officials or agents." That phrasing puts authority in the body, not in individual seats around the table. A single commissioner asking, "Show me the per-business tax breakdown," doesn't, by virtue of being a commissioner, have a right to see it.

Common questions

Was per-business HMR tax data confidential under Arkansas FOIA?
Yes, under Ark. Code Ann. § 25-19-105(b)(23)(A). Aggregate citywide totals were not exempt; only the per-business breakdowns.

Could a Commission's Executive Director see exempt tax data?
Possibly, depending on the duties delegated to that position. The AG could not answer without facts about the specific role.

Could the Executive Director then privately show that data to individual commissioners?
The AG didn't answer yes or no. The opinion suggested individual commissioners don't gain access just because they are commissioners. They might if the Commission as a body authorized it, but that's a fact question.

Why doesn't FOIA settle the in-house access question?
Because FOIA was written to govern public disclosure, not internal information flow within a government agency. The exemption identifies what the public can't have. Internal access among officials is governed by the substantive statutes that create the office and define its duties.

Did this analysis apply to other tax confidentiality exemptions?
The reasoning would translate to any FOIA exemption written to block public access without an internal-access carve-out: the substantive statute creating the office controls who within the agency can see the records.

Source

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

Original opinion text

Opinion No. 2017-086
November 2, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable David Whitaker
State Representative
717 North Lewis Avenue
Fayetteville, AR 72701-1611
Dear Representative Whitaker:

This is in response to your request for an opinion on the following questions concerning the City of Fayetteville Advertising and Promotion Commission's one penny hotel, motel, and restaurant tax ("HMR tax"):

1) Can the City legally provide HMR tax-collection information for separate businesses to the Executive Director and to the Financial Analyst of the Fayetteville Advertising and Promotion Commission?
2) If so, must the Executive Director and the Financial Analyst hold all such HMR tax-collection information strictly confidential, or can the Executive Director privately furnish the HMR tax-collection information to individual Advertising and Promotion Commissioners?

RESPONSE

I will address your questions together because I believe they call for essentially the same analysis. As discussed below, it may well be the case that the Executive Director, the Financial Analyst, and individual members of the Advertising and Promotion (A&P) Commission are entitled to access separate businesses' HMR tax information in the course of performing their respective duties under the Advertising and Promotion Commission Act. However, I lack sufficient information regarding those duties to decide the matter. Moreover, I am not authorized as a factfinder under the foregoing Act. My opinion must therefore be limited to a discussion of the state law bearing on your questions.

DISCUSSION

As recognized in correspondence attached to your request for my opinion, HMR tax information is exempt from disclosure under the FOIA. The employees and officials at issue under your questions are therefore not entitled to review HMR tax information as Arkansas citizens pursuant to the FOIA.

However, the individuals identified in your questions may not in all circumstances be subject to the same limitations as state citizens in accessing HMR tax information. The exemption under FOIA for this information is an exception to the release of records to the "public:"

Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.

It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....

While the FOIA forecloses a member of the public from obtaining exempt records, it is silent on the question of who may or may not have access to records by virtue of holding a particular position within a public office or agency. Several recognized commentators on the FOIA have observed in this regard that "some officials may obtain access to exempt records by virtue of statutory authority, or subpoena power, or otherwise in the course of their official duties." In my opinion, therefore, the answer to each of your questions turns on the existence of some authority outside FOIA in support of the Executive Director, the Financial Analyst, and individual A&P Commissioners having access to separate businesses' HMR tax information.

In this regard, I have found no clear statutory authority for such access based merely upon either the position of "Executive Director" or "Financial Analyst," as named in your questions. The Advertising and Promotion Commission Act, which authorizes the levy of the HMR tax, does not establish either of these positions. Nor does the Act charge A&P Commissioners, individually, with any powers or duties. I therefore strongly doubt individual A&P Commissioners would be authorized to obtain otherwise exempt HMR tax information merely by virtue of their status as Commission members.

On the other hand, I believe the Advertising and Promotion Commission Act provides ample support for the general conclusion that the A&P Commission as a body, and those who are authorized to act on its behalf, have access to HMR tax information in the course of discharging the Commission's responsibility to collect and enforce the tax. The Act provides in relevant part that the HMR tax "shall be collected by the advertising and promotion commission of the levying city or by a designated agent of the commission." Persons paying the tax "shall report and remit it upon forms provided by the commission and as directed by the commission." The Act further states that "the administration and enforcement and all actions shall be by and in the name of the commission through the proper commission officials or agents."

I have no information regarding the collection and enforcement of the City of Fayetteville's A&P tax. More specifically, with regard to your first question, I have no information regarding the powers and duties of the "Executive Director" and the "Financial Analyst." I can speculate that these persons may have access to HMR tax information as a necessary condition of performing their duties as employees or agents of the Commission. But I lack sufficient information regarding their respective roles to decide the matter.

Similarly, regarding your second question, there may be circumstances under which an individual A&P Commissioner is entitled to access HMR tax information that is unavailable to the public under the FOIA. But in my opinion, such access does not follow merely from one's position as a Commissioner. Rather, I believe it will depend upon how the Commission conducts its business, with the inquiry centered on whether the Commissioner is properly acting for the Commission in accessing the tax information. This requires a factual determination that is outside the scope of an opinion from this office.

Sincerely,

LESLIE RUTLEDGE
Attorney General