AAC RESEARCH CORNER Freedom to harass

The Arkansas Freedom of Information Act (FOIA) is paramount in ensuring democracy through governmental transparency and serves as a reminder that the government serves the people, not the other way around. Although FOIA is an incredibly useful tool in holding the government accountable, there must be a balance between the public’s right to know what agencies are doing and the agencies’ ability to perform their duties. Arkansas has failed to strike that balance.

During the 2023 general session, legislators will have two big opportunities to address some of the shortcomings in Arkansas FOIA laws. The first will be to protect coroner’s reports from being released during impending criminal investigations. The second will be to create reasonable deterrence from those weaponizing FOIA requests against city and county officials. It is up to the 94th General Assembly to bring Arkansas up to standard and provide the same protections the majority of the country already provides.

As we look toward the future, it’s important to celebrate the progress made thus far. In 2021, the state legislature passed Act 778, an amendment to Ark. Code Ann. § 2519-112. This statute concerns the production of audio and visual media by state law enforcement agencies and detention centers. The bill’s intent was to counterbalance the volume and scope of FOIA requests that law enforcement officers, dispatchers and detention personnel were receiving, and to compensate them for their time under certain circumstances.

Prior to its enactment, county employees were required to spend hours, if not days, viewing and redacting audio and visual media to fulfill these requests. Without deterrence for the requestor to do so reasonably, counties were overburdened with outlandish and overinclusive requests.

In 2019, Washington County received 32 requests that took over three hours each to fulfill. Requests included 13 hours of video media and 25 hours of media spanning over 17 separate videos. In 2020, the county received 19 requests that each took over three hours to fulfill, including requests for 14 hours, 13 hours, and 30 hours of video media. The time needed to search, redact and compile requests similar to these makes it difficult for county personnel to comply with the three-day turnaround requirement imposed by FOIA, especially without being compensated for their work.

Subsequently, Act 778 has provided agencies some relief from vexatious requests. Arkansas law now allows city, county and state personnel to be paid for their work of fulfilling time consuming requests. More specifically, employees’ work is compensable when viewing and redacting media takes longer than three hours. Additionally, it allows an agency to require prepayment if the requested material will take longer than three hours to produce. This is a necessary deterrence and requires the requestors to be mindful and concise when submitting requests for information.

Although this is a step in the right direction for Arkansas, there is still work to be done in order to better serve state and county officials. This term, legislation is anticipated to be introduced to the General Assembly that is targeted to address some of the shortcomings in the state’s FOIA laws. There are two bills that are of particular importance to counties, one that will cover coroner reports and the other will combat the harassment of governmental officials.

Protection of Coroners Reports During Criminal Investigations and Proceedings

Rep. Dwight Tosh and Sen. Blake Johnson have filed HB1557 to address issues with coroners’ investigations and reports. Under Ark. Code Ann. § 12-12-312, the reports, records, autopsies and postmortems of the Arkansas Crime Laboratory and Medical Examiner are privileged during ongoing criminal investigations. These records are to be released only to a limited group of individuals, including next of kin, criminal defendants, legal counsel and prosecutors of a criminal case. However, coroners’ reports are subject to FOIA and only remain confidential until the time the coroner issues his or her final report, even if the materials are being used to aid in an ongoing criminal investigation.

Shockingly, this means the coroner will be unable to withhold his or her report from public inspection should the Crime Lab or Medical Examiner send them documents in due course. If the records, files and information created and compiled from the Crime Lab are protected information through the entirety of a criminal investigation, why does the law not protect the same information while in the hands of a coroner?

This loophole defies all logic and common sense and fails to preserve the overall integrity of criminal investigations. The investigating agency’s ability to limit public access to this kind of information is integral to solving criminal cases. By allowing the public access to this information before the case is closed, agencies not only face unnecessary burdens and obstacles, but deny officers the evidence and resources they need to complete a prompt and thorough investigation.

This term, legislators are proposing to amend Ark. Code Ann. § 14-15-304 to close this loophole. The amendment provides that the reports, records, autopsies and postmortems of the Crime Lab and Medical Examiner remain confidential even if sent to coroners, until the criminal investigation is complete in accordance with § 12-12-312. Failing to do so will ultimately delay cases from being solved, or worse, be the difference between solved and unsolved cases.

Creating Reasonable Guardrails to Curb Harassing or Vexatious FOIA Requests

Despite best efforts, the enactment of Act 778 of 2021 did not address the magnitude of harassing or vexatious FOIA requests received by counties. Arkansas currently allows requesters to file as many or as large of requests as they want, without providing the agency any assurance that it will be made in good faith. This means state and county agencies must work under the assumption that requestors will provide adequate descriptions of the information sought and that the scope of information will be somewhat reasonable.

It is critical that both parties work under this assumption to strike the balance between governmental transparency and governmental function. Most requesters, including those from news and media outlets, work with agencies to maintain this balance. Nonetheless, an inevitable imbalance is created when the minority of requesters, who refuse to work under this assumption, generate the majority of requests as a way to harass the government. For this reason, the current law is unworkable and perpetuates a lopsided dynamic, leaving governmental agencies at the mercy of the minority. These requests can only be described as unduly burdensome, harassing and “vexatious,” a term used to describe repeated or frivolous requests that are made to annoy the agency. Some factors used to determine whether the requests rise to this level include the number of requests, scope of information requested, nature or subject matter of the request, or an overall pattern of requests that impact the agency’s operations or functions. This type of request not only ties up governmental resources, but it also makes it incredibly burdensome for agencies to comply with the legal requirements imposed by FOIA. Unfortunately, these requests have become just another part of the job for most city and county employees.

To best describe this dynamic, it is important to note a few things about the current law. First, Arkansas allows state agencies three business days to respond to FOIA requests and provide the requested information, assuming it isn’t exempted by statute (Ark. Code. Ann. 25-19-105). If an agency fails to provide the information requested or wrongfully rejects the request, that employee is potentially subject to a Class C misdemeanor under Ark. Code. Ann. 2519-105. Although a misdemeanor is technically minor in comparison to a felony, it isn’t insignificant. It is, however, a charge state employees hope to keep off their records. For this reason, they have learned it is in their best interest to not fight harassing requests.

The threat of a Class C misdemeanor looms over employees when (1) the agency is bombarded with large, frivolous requests that require hours to review and redact confidential information before they can be released; (2) the agency is unsure whether the information is subject to FOIA; or (3) the agency does not have the means or personnel to keep up with the number of requests, in addition to their ordinary duties.

Next, like all state and federal FOIA laws, Ark. Code. Ann. 25-19-105 does not allow the state to charge a requester for costs other than what is necessary to produce the information. This includes the cost of supplies, equipment, and maintenance. Federal FOIA guidelines allow states to factor employee time into the overall cost of production, which many states have already adopted. This would allow agencies to charge requesters for information that takes longer than two hours to fulfill. Arkansas, however, currently does not compensate personnel for the time searching, compiling and redacting information.

It is this combination that allows this minority of requesters free range to request as much and as often as they want. Agencies work overtime to fulfill unduly burdensome requests to comply with FOIA’s legal requirements. State, county, and city employees are facing overt harassment and work in fear of possible legal sanctions against them while having nothing to show for it. The law has incentivized requesters to abuse the system because they understand that fear leads to compliance. Legislators failed to predict, however, that state employees also have an incentive: to get out of this line of work while they still can.

This term, legislators are proposing an amendment to Ark. Code Ann. § 25-19-105, which would provide a workable parameter to deter FOIA abuse, while ensuring citizens’ right to inspect government information. First, agencies will be allowed to charge the rate of the lowest paid employee with the necessary skill and training to respond, if the time needed for personnel to retrieve, review, redact, and provide records exceeds two hours. Second, the records custodian may require a requester to pay in advance if the estimated fees exceed $10, instead of the $25 the law already provides for. Third, a custodian may refuse to fulfill any new requests made by delinquent requesters until outstanding dues from fulfilled requests are paid in full. Fourth, it would give personnel a safe harbor when requests cannot be retrieved, reviewed,