AG opinion: Unclear if WAC board subject to FOIA

Arkansas Attorney General Dustin McDaniel’s office gave no final answer in an opinion on whether the Walton Arts Center's governing body is subject to the Arkansas Freedom of Information Act.

"I am unable … to definitely opine on your question," the opinion stated. "In my opinion, this will depend upon whether there is sufficient alignment with government, or so-called 'intertwining' of functions so as to trigger the FOIA."

State Sen. Uvalde Lindsey, a Fayetteville Democrat, requested the opinion Aug. 14 on behalf of Walton Arts Center officials.

The opinion was written by Deputy Attorney General Elisabet A. Walker and approved by McDaniel.

The opinion stated that the fact that the Walton Arts Center was built using millions of dollars from the city of Fayetteville and University of Arkansas and receives ongoing public support is not enough to trigger the state's open records law.

"The mere receipt of public funds will not bring a private organization within the FOIA's reach," according to the opinion.

Quoting previous opinions, he added that the private organization must also be carrying on “public business” or be “‘otherwise intertwined with’ the activities of government.”

The Walton Arts Center Council was created as an agent of the city and university through a 1986 agreement. At that time, the city's board of directors and University of Arkansas Board of Trustees appointed all board members. The board was required to report annually to city and university officials.

"These factors relating to the creation, funding and purpose of the … Arts Center Council weigh heavily in favor of it having been subject to the FOIA as an entity 'supported wholly or in part by public funds,'" the opinion stated.

The opinion added that the evolving nature of the arts center board leaves questions as to its status as a public body.

The City Council and Board of Trustees now appoint 10 of the arts center council's 20 members. While the arts center still receives public money each year, only a small percentage of its budget comes from public sources. Arts center CEO Peter Lane estimated that less than 5 percent of the center's $9.8 million operating budget in fiscal 2012 came from government sources.

"In my opinion, the above changes likely signal the need for further inquiry into the extent to which the WAC is 'intertwined' with the functions of government," Walker wrote in the opinion.

The opinion said only an independent "finder of fact" could determine the arts center board's public status.

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