Arkansas Attorney General Tim Griffin says private schools accepting public funds aren’t subject to FOIA

LITTLE ROCK, Ark. – Transparency is once again being challenged in the Natural State, this time in the topic of Arkansas dollars that go to private schools.

Last week, Arkansas Attorney General Tim Griffin released an opinion saying that private schools, even the ones that accept public dollars through the LEARNS Act, are not subject to the state’s Freedom of Information Act.

This means private schools won’t be forced to hand over any public records, a mandate that public schools must follow.

The attorney general said his decision boils down to the idea that private schools are not run by the government.

Griffin’s note was determined as an “opinion” and won’t be determined legal or not legal until it is challenged and goes before a judge.

Griffin’s opinion has gotten a lot of push back from educators in the state and people who work with public policy.

In his letter, which was sent to state legislators last week, Griffin said for a private entity to be subject to FOIA, the organization must:

1. Be “supported wholly or partially by public funds or expending public funds”
2. Their activities are “intertwined” with those of the government.

While some private schools are accepting public funds, Griffin says they are not “intertwined” with the government.

“Because the analysis varies from situation to situation, the Arkansas Supreme Court, and this office review multiple factors to determine if a private entity is subject to the FOIA. Generally, each of those factors is aimed at determining the degree of control the government exercises over the private entity itself or the activity the private entity is engaged it.”

The attorney general goes on to say the government is not involved in private school operations because it does not “have control over management operations and budget,” leadership or employees are not appointed by public officials, and the formation was independent of the government.

Attorney General Tim Griffin was not available for an interview on the subject Monday but did send KARK 4 News a statement.

“My opinion simply reflects what the law in Arkansas is,” the attorney general wrote. “The law is very clear; private schools are not subject to FOIA.”

Since its release, the opinion has gotten a lot of push back from taxpayers and people in public education.

Arkansas Public Policy Panel executive director Bill Kopsky said the decision could spiral into larger problems with transparency.

“In a public school, if you have a problem with something with the school board, even if you’re just curious about something happening at school, you have the right to go to the school board meeting. You have the right to see the budget. You have the right to see an audit of the budget,” Kopsky explained. “In these private schools, you don’t have a right to any of that.”

John Dipippa, a former dean at the Bowman School of Law, noted that many other organizations besides private schools also get state funding without an expectation of following FOIA guidelines.

“Lots of groups get grants from the government to carry things out, and no one expects them to be governed by the same rules as the government in regard to FOIA,” Dipippa said.

Dipippa says there is a fine line when it comes to government regulated entities, and entities that get government funding.

“States that have privatized prisons. There you’ve got the government paying for the incarceration to a private company and is carrying on an exclusive and traditional government function, incarceration,” he said. “In all those situations, the government still has a fair degree of control over how that operates. So, it those cases it’s pretty clear that that group, the private prison, is subject to FOIA.”

The former dean also noted that, different from private prisons, public schools do not check all the boxes when it comes to the criteria of being labeled, “regulated by the government.”

“If you look at the LEARNS Act, there isn’t a lot of regulations that it imposes on private schools,” Dipippa stated.

Dipippa did point out a few weaknesses in the attorney general’s opinion, and one of those is whether education is a “traditional government function.”

“When the state constitution says that the government is responsible for educating children between kindergarten and 12th grade, that makes it a traditional government function,” he said. “I think there’s a stronger case to be made for FOIA in regard to these private schools doing a traditional government function.”

Dipippa believes the issue of FOIA could continue to spark concerns as the popularity of the LEARNS Act and the program’s Education Freedom Accounts grow.

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