LAW PROFESSOR HELPS BRING FOI INTO THE ELECTRONIC AGE

FAYETTEVILLE, Ark. - A University of Arkansas law professor has helped shape new recommendations for the Arkansas Freedom of Information Act (FOIA) to bring it into the computer age.

John Watkins, William H. Enfield Professor of Law, has studied the legal applications of the Arkansas FOIA for years and has written a book on the subject. He and 11 other experts served on the Electronic Records Study Commission, created by Act 1060 of 1999 to develop recommendations for amendments to the FOIA and bring them before the 83^rd General Assembly. Watkins was appointed by Governor Mike Huckabee to the ERSC, which was chaired by Susan Cromwell and Doug Elkins of the Arkansas Department of Information Systems. The commission, which included members of the press and representatives of counties, cities, and school districts, met regularly over an 18-month period to work on forming recommendations.

"The current act, which was passed in 1967, was written with paper in mind," Watkins said. With the rise of the Internet and the increasing use of e-mail, access to information has changed more rapidly than laws designed to regulate access. An increasing number of public records are maintained in electronic databases, and many FOI requests ask for public records in electronic form.

"Agencies are getting more requests for electronic information and there is some confusion about how to properly provide access," he said. "Modifying the act to address the computerized age is just good government."

One of the main provisions would require state government agencies to provide access to their public records via the Internet. Online availability would make it easier for agencies to comply with FOIA requests, because the agencies could refer people directly to the web site to locate the information. Watkins pointed out that most federal agencies, including organizations like the CIA, have public record information available online.

Another provision includes electronic or computer-based information in the definition for public records. Also, the commission recommended allowing requests for information to be made by telephone, letter or e-mail. The Attorney General has interpreted the present law as requiring requests to be made in-person.

Watkins and Little Rock attorney N.M. "Mac" Norton, an adjunct professor at the law school, drafted much of the legal language in the proposed modifications to the FOIA. The commission recently submitted its report and recommendations to the General Assembly, including the following:

. To include electronic records specifically in the Act’s definition of "public records."

• To provide specifically that FOIA requests may be made electronically, e.g. by e-mail, as well as in person or by postal mail or telephone, and to require that requests be reasonably specific.
• To avoid any risk to federal education funds by making the Act’s "scholastic records" exemption consistent with the Federal Educational Rights and Privacy Act of 1974.
• To provide an exemption for information regarding security measures on government computer networks.
• To provide that citizens may copy public records, electronically and otherwise, and to establish standards for copying fees.
• To provide that a citizen may request public records in any medium or format that it can be conveniently furnished in, while also providing that a custodian is not required to create a record that does not already exist, but allowing common-sense discretion to do so when appropriate.
• To clarify for practical purposes the time limits for responding to FOIA requests.
• To clarify that exempt information should be removed from public records prior to disclosure, and to require that electronic removal of information be indicated on the electronic record produced.
• To provide that computer hardware and software acquired by public entities after July 1, 2001, not impede access to public records.

"The commissioners devoted considerable time and effort to this project, and I think we came up a reasonable, workable proposal that the General Assembly will enact," Watkins said. "The only downside is that I will have a lot of work for the next edition of my book on the FOIA."