Troutman Pepper Hamilton Sanders LLP

01/22/2021 | News release | Distributed by Public on 01/22/2021 23:01

Professional Background Screening Association Wins Freedom of Information Appeal Against Arkansas Clerk of Court

The Supreme Court of Arkansas ruled in favor of the Professional Background Screening Association ('PBSA') against the Clerk of the Court of Benton County, Arkansas, Bentonville Division, holding that background screeners' record requests are not requests for compiled information for purposes of Arkansas Supreme Court Administrative Order Number 19 ('Order 19'), and therefore not subject to access limitations imposed by the Clerk of Court. Following the decision, the Bentonville Division resumed processing record requests for background screeners, along with all other state courts.

This case arose after a PBSA member's request for court records pursuant to the Arkansas Freedom of Information Act ('FOIA') was denied by Jennifer Jones, the Clerk of Court. Clerk Jones asserted that background screeners' requests for 'any and all court records which relate to' a certain individual was a request for 'compiled information' under Order 19. Order 19 requires a license agreement and special certifications of use for 'compiled information,' which it defines as 'information that is derived from the selection, aggregation or reformulation of information from more than one court record.' PBSA filed suit challenging Clerk Jones' interpretation of Order 19, asserting this interpretation effectively deprived background screeners of their right to access court records under the FOIA. The County Circuit Court entered summary judgment in favor of PBSA on its FOIA claim, and Clerk Jones appealed.

On appeal, the Arkansas Supreme Court recognized the interplay between Order 19 and FOIA was one of first impression. The Court determined, however, a request for 'all court records' related to a specific individual is not a request for compiled information. It recognized '[t]he process described by Jones that is needed to identify and copy all existing court records relating to a specific person may be tedious and require multiple steps; however, this is not akin to selecting certain information from multiple cases and then aggregating or reformulating that information into a new court record.' The Court further held '[t]he fact that the Bentonville Division uses what the circuit court referred to as an 'antiquated' computer system does not change the nature of the information requested or transform existing court records into 'compiled information.''

In reaching its decision, the Court emphasized it 'liberally construe[s] the FOIA to accomplish its 'broad and laudable purpose that public business be performed in an open and public manner.'' This decision is a decisive victory for background screeners who seek to further that same 'broad and laudable purpose' by making such information accessible to their customers.