FOIA held applicable to a private nonprofit volunteer fire department under contract with a fire protection district to provide public safety and utility functions traditionally performed by governmental entities, citing with approval Op. Att'y Gen. 1992-205 opining that private water associations that are supported in part by public funds and performing public functions are subject to the FOIA
How later courts described this case
- FOIA held applicable to a private nonprofit volunteer fire department under contract with a fire protection district to provide public safety and utility functions traditionally performed by governmental entities, citing with approval Op. Att'y Gen. 1992-205 opining that private water associations that are supported in part by public funds and performing public functions are subject to the FOIA
- FOIA clearly applicable to a private nonprofit volunteer fire department providing public safety and utility functions traditionally performed by governmental entities pursuant to its contractual arrangement with a fire protection district
- private, non-profit volunteer fire department that provided water service to area residents required to pay attorneys' fees for refusal to comply with the FOIA
Written by the judges who cited it.
The opinion
F. STROUD, Jr., Judge, dissenting. I respectfully dissent from the majority opinion and would affirm the trial court’s denial of the award of attorney’s fees. The trial court’s order contained a paragraph pertaining to the request for attorney’s fees, which provided:
2. Pursuant to Ark. Code Ann. § 25-19-107 (d), and upon a finding that Beaverfork was substantially justified in denying the April 15, 1999 FOIA request, an award of attorneys fees would be unjust. Accordingly, no attorneys fees are awarded to Kristen.
(Emphasis added.)
In Depoyster v. Cole, 298 Ark. 203 , 766 S.W.2d 606 (1989), our supreme court quoted from an article published in 1987 Arkansas Law Notes, and explained that “[t]he court need not . . . make afee award in every FOIA case; indeed, the purpose of the fee-shifting provision is to assess fees and costs where public officials have acted arbitrarily or in bad faith in withholding records.” Id. at 208 , 766 S.W.2d at 609 (emphasis in original). The court also stated that “[w]e do not imply by this opinion that an award of litigation expenses under the FOIA will always be defeated in the absence of arbitrary or bad faith conduct on the part of the defendant.” Id. Our standard of review in these cases is one of abuse of discretion. That is, the decision of whether to award a fee in such cases is a decision within the trial court’s discretion and will not be set aside absent an abuse of that discretion. Burke v. Strange, 335 Ark. 328 , 983 S.W.2d 389 (1998).
The majority opinion concludes, without difficulty, that the refusal to produce records pursuant to the FOIA was “arbitrary to say the least, if not in bad faith.” I cannot reach that conclusion because I disagree with the majority opinion’s controlling conclusion that “Beaverfork knew it was essentially performing a governmental function for which it received public funding. ...” Moreover, the majority opinion’s conclusion that the facts in the instant case are so directly on point with the facts in City of Fayetteville v. Edmark, 304 Ark. 179 , 801 S.W.2d 275 (1990), as to demonstrate that Beaverfork acted arbitrarily in refusing the request for documents is, to me, a stretch at best. In addition, the Edmark case did not involve an issue concerning the award of attorney’s fees; it only addressed the applicability of the FOIA. Flere, the trial court ultimately concluded that the FOIA was applicable, but that the denial of the FOIA request was substantially justified and that an award of attorney’s fees would be unjust. Finally, the majority opinion is able to conclude that the trial court abused its discretion. I cannot agree that the trial court abused its discretion in finding that there was substantial justification for denying the FOIA request and that an award of attorney’s fees would be unjust.
In short, I find it impossible on the record before us to say that the trial court abused its discretion in the instant case. Therefore, I would affirm.
I am authorized to state that Judge KOONCE joins in this dissenting opinion.