McDaniel: Arts Center's Status Unclear

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

State Sen. Uvalde Lindsey, D-Fayetteville, requested the opinion Aug. 14 on behalf of arts center officials.

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Complete Opinion

For a full copy of Tuesday’s opinion, go to the Arkansas Attorney General’s website at ag.arkansas.gov

“I am unable … to definitely opine on your question,” said Elisabeth Walker, deputy attorney general, in a letter approved by McDaniel. “This will depend upon whether there is sufficient alignment with government, or so-called ‘intertwining’ of functions so as to trigger the FOIA.”

Arts center CEO Peter Lane has said arts center fundraising, in particular, shouldn’t have to be disclosed.

The Arkansas Freedom of Information Act, adopted in 1967, is intended to give residents an opportunity to inspect public records and observe the actions of government officials.

The attorney general’s opinion stated the fact that the Walton Arts Center was built using millions of dollars from Fayetteville and University of Arkansas and receives ongoing public support isn’t enough to trigger the state’s open records law.

More than 20 years ago, the city and university committed $4.5 million apiece to help build the center and establish an endowment, which has grown to more than $12 million. The city gave the arts center $289,000 last year from parking fees and fines to pay for parking services, arts education and subsidized ticket sales at certain arts center events.

Last year, the Fayetteville Advertising and Promotion Commission awarded the arts center $15,000 in

hotel, motel and restaurant taxes for the center's annual Artosphere event. According to Terri

Trotter, chief operating officer, the center occasionally receives grants from the National Endowment for the Arts, the Arkansas Arts Council and the Department of Arkansas Heritage.

More recently, officials have asked the Advertising and Promotion Commission for $8.5 million to help pay for a $20.6 million renovation to the Dickson Street campus.

“The mere receipt of public funds will not bring a private organization within the FOIA’s reach,” Walker said.

Quoting previous opinions, she added a private organization must also be carrying on “public business” or be “otherwise intertwined with the activities of government” to be subject to the Freedom of Information Act.

The Walton Arts Center’s board was created as an “agent” of the city and university through a 1986 interlocal agreement. At that time, the city’s board of directors and University of Arkansas trustees appointed 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,’” Walker said.

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

The City Council and university’s board appoint 10 of the 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. Lane estimated 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 stated only an independent “finder of fact” could determine the center’s public status.

Beth Bobbitt, center public relations manager, said, “We appreciate the Attorney General’s response, which reinforces the complexity of the issue, and will work to clarify our governing documents, if needed. Walton Arts Center has and will continue to conduct its business in an appropriate and open way.”

John Tull, general counsel for the Arkansas Press Association, said he disagreed in principle with some parts of Walker’s analysis.

“It gives me concern: the suggestion that, by its own act, an entity can avoid application of (the) Freedom of Information (Act) that it has been historically subject, too,” Tull said.

“I think, if there is money that is being used either in the past or that the entity is receiving benefit from currently, then that’s something that should allow the public to know what is being done with its money,” he added.

Tull occasionally represents Northwest Arkansas Newspapers in issues involving the Freedom of Information Act.

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