FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-17-2148] HONORABLE TIMOTHY DAVIS FOX, JUDGE
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
by: Megan D. Hargraves and David F. Koehler, for appellant.
& Gillham, P.L.L.C., by: Luther Oneal Sutter and Lucien
Gillham, for appellee.
BRANDON J. HARRISON, Judge
case is factually related to Blakely v. Arkansas
Children's Hospital, 2019 Ark.App. 568 (Blakely
I), which involves Arkansas's Freedom of Information
Act and illegal-exaction claims against the hospital. We have
chosen not to decide the merits of this appeal now because
the circuit court's order is unclear on some points,
which in turn prevents us from ensuring that our review is
fair to the court and the parties. We therefore remand and
ask the circuit court to clarify its order.
Blakely I was pending in circuit court, Dee Blakely
sent a written request to Arkansas Children's Hospital on
15 February 2017 seeking records under the Arkansas Freedom
of Information Act. Blakely asked for "[r]ecords related
to the receipt and expenditure of County tax funds by
Arkansas Children's Hospital, the County hospital for
Pulaski County, Arkansas, for the 'purpose of
maintaining, operating and supporting such hospital' for
the calendar years 2011-2016." The hospital responded
that it was not subject to FOIA and had no such records
because the funds were paid to the hospital as Medicaid funds
from the Arkansas Department of Human Services.
April 2017-the date the illegal-exaction claims in
Blakely I were tried to the court-Blakely, through
counsel, orally asked Jane Duke (outside counsel for the
hospital) for "all remittance advice letters sent to ACH
from Medicaid, as identified by Christine Coutu in her
testimony on April 4, 2017, during the bench trial of
[Blakley I]." On that same day, Blakely,
through counsel, also asked Duke and Rhonda McKinnis, chief
counsel for the hospital, for "all notes they had taken
while attending the bench trial of [Blakley
I]." The hospital denied the April 2017 requests,
stating again that it is not subject to FOIA.
sued and asked that the requested documents be produced.
(Thus this Blakely II was born.) She also asserted
that the hospital was subject to FOIA because it is
designated as a county hospital; there is a tax levied for
the maintenance, operation and support of it; it is
affiliated with UAMS; and the hospital receives several
million dollars from state appropriations every year.
circuit court entered an order on Blakely's FOIA requests
on 13 December 2017. The court wholly denied the FOIA
requests for remittance-advice letters and trial notes. The
court denied in part and granted in part the FOIA request
relating to county money.
hospital filed its notice of appeal on 15 December 2017 and
makes one point for reversal: the circuit court clearly erred
by ordering it to produce the documents under FOIA.
a private entity like the hospital can be ordered to disclose
records under FOIA, it must be covered by the act.
Sebastian Cty. Chapter of Am. Red Cross v.
Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).
Whether a private entity is covered by FOIA is determined by
a three-factor test, which according to an authoritative
commentator in this area of the law, asks whether the entity
(1) receives public funds, (2) engages in activities that are
of public concern, and (3) carries on work that is
intertwined with that of governmental bodies. See
John J. Watkins et al., The Arkansas Freedom of
Information Act, 64 (6th ed. 2017) (footnotes omitted).
The test is a conjunctive one according to the preeminent
book on Arkansas's FOIA, and the parties in this case so
argued in their respective briefs, themselves each citing
Arkansas Attorney General opinions to that effect. As one
example, in a bench brief filed with the circuit court in
opposition to Blakely's FOIA complaint, the hospital
argued that "The FOIA only applies to organizations that
meet a three-prong test. The receipt of [direct] public funds
is merely one prong of the test." The hospital then
provided the same quote from Professor Watkins's book as
the one we provided at the beginning of this paragraph. And
in its appeal brief, the hospital asserts that it "is
not an entity subject to FOIA. The record demonstrates that
ACH does not engage in matters of public concern, is not
intertwined with the government, and is not supported by
direct public funds."
primary reason we have decided to remand the case rather than
decide it now on its merit is that the circuit court
expressly made a finding on the first factor related to
public funds, but it remained silent on the other two
factors. The court also appears to have determined whether
certain documents were subject to FOIA, not whether the
hospital itself was subject to it. (More on this below.)
Normally we indulge the presumption that the circuit court
made the findings necessary to support its judgment. See
Moreland v. Dodds, 2012 Ark.App. 10, 388 S.W.3d 73.
Here, however, we cannot fairly do so.
asked for a declaration in her complaint that the hospital is
a FOIA-covered entity. But the circuit court's order is
unclear on whether it decided that question fully. For
example, paragraph 2 of the order indicates that the court
may have applied the three factors in a disjunctive, not
conjunctive, manner. The opening sentence of the paragraph
states (with our emphasis): "Defendant Arkansas
Children's Hospital (ACH) contests that it is an entity
subject to the Arkansas FOIA because, as a private entity it
does not: (1) directly receive public funds; and/or
(2) engage in activities that are of public concern;
and/or (3) carry on work that is intertwined with
that of government bodies." The remainder of the
paragraph reads as focusing on factor one. Having considered
the entire order, we cannot tell with confidence whether all
three factors were applied in a conjunctive or disjunctive
manner. The difference is a legally meaningful one.
example of an important ambiguity is that in paragraph 3.c.
the court speaks in terms of FOIA attaching to certain