Refer to Law Offices of Gary Green, P.A. We Share the Work We Pay the Costs We Pay 1/3 Associate Counsel Fees In Compliance With Rule 1.5(e) of the Arkansas Model Rules of Professional Conduct
Personal Injury Product Liability Medical Negligence Nursing Home Cases 1001 La Harpe Blvd., Little Rock, AR 72201 501-224-7400 1-888-4GARY GREEN (442-7947) www.gGreen.com ggreen@gGreen.com for the state and you have personal matters that you cannot afford to allow for public consumption, you cannot use governmentowned equipment in connection with those personal matters. Think those in charge of the documents being sought in a request will “have your back”? Think again. The penalties for violating an FOIA request are potentially severe.5 They almost cost a city planner her job when, in February of last year, a criminal complaint was filed against Marilyn Heifner by the City of Fayetteville for violation of the state’s version of the Act.6 The price she paid for failure to comply was a $4,000 pay cut, the opportunity to deal with a class C misdemeanor and some prime local media coverage of her criminal and administrative case. Additionally, in any action to enforce the rights granted by the Act, a Court shall assess against the defendant reasonable attorney fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed in prosecuting a claim under the Act.7 Your employer may have a hard time finding an out when it comes to the FOIA. Consider Daugherty v. Jacksonville Police Dep’t.8 FOIA requests made by Appellant after she was stopped for speeding by a police officer were denied. The department 24
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denied the requests initially, claiming they were too broad and burdensome. Further, when they agreed to comply, they set forth a requirement that she pay $2,475 for copying of the video and audio files sought. The Supreme Court held that there was an FOIA violation by the Department with regard to Appellant’s initial FOIA request and that the Department’s requirement of a fee in the amount of $2,475 was unreasonable and a violation of the FOIA. In one of the rare leanings toward withholding, the Court upheld a department policy that got rid of certain evidence every 45 days, so long as there was not an FOIA request for said items before the end of that 45 days. The Court went on to explain that the 45-day rule probably violated other rules and regulations, but that those issues had not been brought up in the lower court. Even a finding supporting withholding records was couched with a warning suggesting the withholding could be otherwise prohibited. Another 2012 Supreme Court finding did uphold the denial of a request.9 However, it appears to be a very specific fact scenario that would likely provide very little help to an employee trying to keep his private affairs private while using state property to aid in those affairs. Bobby Petrino was revered and feared in
the athletic department. Even that was not enough to protect him from compliance with the broad sweep of the FOIA request. In the aftermath of the Petrino debacle, the Razorback football program just suffered through one of its worst seasons in years. However, the full ramifications on the program may not be evident for a few more years. Nevertheless, the immediate takeaway for state employers and employees is clear: if you are employed by a state or federal government agency or institution, beware of the FOIA and be advised that the emails you send on your work computer or the text messages you send from your employer-provided phone might as well be addressed to Reuters or the Associated Press. Endnotes: 1. Ark. Code Ann. § 25-19-101. 2. Ark. Code Ann. § 15-19-102. 3. Ark. Code Ann. § 22-19-103(1). 4. http://sports.espn.go.com/espnmag/ story?id=3620040. 5. Ark. Code Ann. § 25-19-104. 6. http://www.fayettevilleflyer. com/2012/03/26/fayetteville-ap-directormarilyn-heifner-reinstated/. 7. Ark. Code Ann. § 25-19-107(d). 8. 2012 Ark. 264. 9. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180 (holding that the Freedom of Information Act is inapplicable to a Plaintiff’s attorney’s demands for records prepared by private attorneys of physicians at the University of Arkansas Medical Sciences; the records were sought in the context of a medical malpractice lawsuit). [Editor’s Note: For a more detailed discussion of Harrill & Sutter, PLLC v. Farrar and Daughtery v. Jacksonville Police Dept. see the article “Recent Developments under the Public Records Provisions of the Arkansas Freedom of Information Act” by Clayborne S. Stone and Alex T. Gray in this issue of The Arkansas Lawyer. ■
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