MonticelloLive

A legal dispute between general contractors has raised important questions about the Arkansas Freedom of Information Act.
Two separate organizations of general contractors in Arkansas disagree over the process by which state government awards construction contracts. The dispute centers around a law under which state agencies and public universities do not have to seek the lowest bids for projects that cost more than $5 million.
State officials and university building managers say the law allows them to choose contractors with a proven track record, who have expertise in the specific designs they need and who are sufficiently bonded. They say the law has resulted in faster completion times and better buildings over the long term.
Their favorable opinion is shared by the trade organization that for years has represented general contractors, including some of the largest construction firms in Arkansas.
A separate group of contractors has filed lawsuits challenging the law, contending that it has resulted in a relatively few, large companies getting hundreds of millions of dollars in state building contracts. They say that the system could be abused, and that even though the bid process is cumbersome it provides transparency in how public money is spent.
Whatever the outcome of the legal battle between the contractors, the consequences will affect more than how public dollars are spent on construction. The lawsuits also could have an impact on the state Freedom of Information Act.
That’s because the contractors’ legal challenge includes an FOI request to force the University of Arkansas at Fayetteville to make available for public inspection some of the expenses paid by the university to a company that built a new dormitory.
The university has refused to make them public, saying that the expense reports and receipts are in the possession of the contractor. The university could get the documents from the building contractor if it asked for them, and the lawsuit seeks to compel university officials to do so. Then the documents would presumably become public under the state Freedom of Information Act.
The outcome of the lawsuit over the FOI has implications for all Arkansas government bodies that contract with private firms. State and local agencies frequently contract not only with contractors but also with law firms, accountants, consultants, architects, maintenance workers, advertisers and health care providers.
The FOI requires the custodian of public records to make them available for public inspection. The law defines the custodian of records as the person with administrative control over those records.
One of the important questions arising from the contractors’ lawsuit is whether a custodian of public records can legally relinquish control of those records by allowing a private company to hold them, and thus keep them unavailable to the public.
The Senate Committee on Insurance and Commerce has scheduled a hearing this week on the issue. The major topic of discussion will be a proposal to repeal the law that allows government agencies to forego the bid process on large projects.
A bill to repeal the law was introduced in the 2007 legislative session, but it was defeated in a House committee after university presidents spoke against it.