- Associated Press - Thursday, April 3, 2014

LITTLE ROCK, Ark. (AP) - A publicly owned utility cannot withhold a ratepayer’s home address and is required to release the information under Arkansas’ open records law, the state Supreme Court ruled Thursday.

Justices reversed and remanded a Monroe County judge’s decision that the Brinkley Water and Sewer Department was not required to disclose a municipal ratepayer’s home address under the Arkansas Freedom of Information Act. The utility had argued that it “defies logic” that public employees’ home addresses are exempt from release under FOIA but not public utilities’ ratepayers.

The court dismissed that argument, saying such an exception for ratepayers isn’t currently in the law.

“Whether certain records should be exempt from the FOIA is a public-policy decision that must be made by the General Assembly and not the courts,” Chief Justice Jim Hannah wrote in the court’s opinion.

Jon Hopkins sued the utility after he had requested the home address, phone number and payment history of another resident who uses the utility. The Brinkley utility provided a redacted copy of her account history and stated it did not maintain the customer’s telephone number.

Hamilton Kemp, an attorney for Hopkins, said he did not know why his client was seeking the ratepayer’s home address. Hopkins referred all questions to Kemp.

Kemp said he was pleased with the court’s ruling.

“Right now public records are public records, and the public gets to access those records under the Freedom of Information Act,” Kemp said.

John Martin, an attorney for the utility, said it would comply with the ruling but said he believed lawmakers should look at whether such information should be available to the public.

“I think it’s something that’s ironic that the clerk at the water department who takes my payment every month for my water bill, that information is not subject to public disclosure but my information as a customer is,” Martin said.

At the time, the utility’s lawyers said they believed there was a constitutional expectation that ratepayers’ personal information not be disclosed. It also argued that a Federal Trade Commission rule requiring the utility to develop an identity theft prevention program pre-empted the FOIA’s disclosure requirements. Justices disagreed, saying the two did not conflict.

In a dissenting opinion, Justice Cliff Hoofman said the ruling would require the disclosure of addresses for scores of Arkansas residents who subscribe to public utilities ranging from electricity to solid waste.

“These customers often are required to subscribe to the services of such utilities in order to be a resident of that community and thus would have no choice but to have their private contact information disclosed,” Hoofman said. “The Legislature surely did not foresee such an absurd result and therefore saw no need to enact a specific exception for the utilities’ customers, as it did for the utilities’ employees.”


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