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Thursday, June 14, 2012

Surgeon general's defender wins an FOI appeal

Posted By on Thu, Jun 14, 2012 at 12:24 PM

WINNER: Partne Daugherty wins FOI points.
  • WINNER: Partne Daugherty wins FOI points.
This case would be interesting in its own right.

A Jacksonville woman, Partne Daugherty, successfully appealed two key parts of a lower court ruling that rejected her complaint that Jacksonville officials had violated the Freedom of Information Act in response to her request for records related to her stop for speeding.

In short, the Arkansas Supreme Court said governments can't refuse to comply because a valid request is deemed unreasonable or overbroad. And it gave a public-friendly interpretation for the first time to rules on the cost of reproducing electronic records.

The case is also interesting because Daugherty has an interesting background, including a deep interest in activities of police. Her knowledge of the FOI, police recordkeeping practice and computer techniques produced the video of Little Rock police actions in the arrest of Surgeon General Joe Thompson at his home. Those tapes showed police had misrepresented his behavior the night he was arrested at his home for initially refusing to comply with an officer's demand that he identify himself. Thompson cited the evidence compiled by Daugherty when he commented on an agreement that resulted in a decision to drop charges against him.

In the case before the Arkansas Supreme Court, Daugherty had been stopped for speeding in 2010. She asked in a series of FOI requests for audio and video recordings of not just actions by officers the day she was stopped, but for three weeks before that. The city said that request was too burdensome. The city repeated that argument on a second request, but said reproduction of the items she'd requested would cost almost $2,500 and she should put down that amount as a deposit if she wanted them. She erred in stating the dates at one point and, when she amended it, was told earlier records had been purged.

Some great law here for public access:

The Court overruled the circuit court finding that Daugherty's request was overly broad. "Nothing in the FOIA allows a public agency to decline to reply to a request on this basis," the Supreme Court said. It reiterated that a long string of rulings hold that the law is to be broadly and liberally construed.

Simply stated, the Department’s August 16 letter in response to Daugherty’s first FOIA request, stating that it would not provide the requested records because her request was too broad and burdensome was not a timely and compliant response. The FOIA does not give the custodian of records the power to pick and choose which requests it may comply with.

Nor does the custodian get to choose to release only records it deems relevant, such as the video of Daugherty’s stop in this case. We disagree with the Department’s assertion in its brief that it cannot be said that it denied Daugherty her rights under FOIA where its “repeated efforts to provide Appellant with information reasonably deemed relevant in response to her requests.” (Emphasis added.) There is simply no relevancy requirement in the FOIA.

The court also for the first time reviewed law that sets out a method for establishing fees on requests for electronic information in the context of the Jacksonville demand for a $2,500 deposit to create the information Daugherty sought.

For one thing, a police officer's assertion that he didn't have the knowhow to transfer information to a disc didn't mean the information wasn't readily transferrable, a standard that says when a charge may be applied. Said the court:

... where Daugherty simply requested a copy of the files, the Department could not charge fees that exceeded the cost of reproduction and certainly could not include the hourly rate of Captain Boyd in assessing costs to Daugherty. The circuit court erred in its interpretation and application of section 25-19-109 and thereby erred in concluding that the Department’s requirement of a fee in the amount of $2,475.90 was reasonable and not a violation of the FOIA

The court rejected Daugherty's claim that the law had been violated by purging of records. The decision was narrowly drawn and hinted at some concerns about Jacksonville's record retention policy and the lawfulness of destruction. It wrote, however:

... regardless of how improvident the Department’s retention policy may be, the question is whether Daugherty proved that the Department negligently violated the FOIA.

The circuit court rejected this argument, and we cannot say this was error based on the record before us. Captain Boyd testified at the hearing that it was Department policy to purge the system that maintained the audio and video recordings every forty-five days. He explained that this policy was based on the need to maintain sufficient memory on the server. There was no evidence presented by Daugherty to refute this testimony. Accordingly, we cannot say the circuit court erred in finding that the Department timely complied with Daugherty’s third FOIA request or that the Department did not violate section 25-19-104 in purging the records pursuant to its forty-five-day policy

The order remands the points on which Daugherty won back to circuit court. She can get records without the fee Jacksonville tried to assess, it would appear, but the records she seeks may no longer be available.

Several in the criminal justice system won't be happy about this outcome. They've complained since Daugherty emerged as a critical player in the Joe Thompson case that she deserved scrutiny for a criminal charge in her past and a lengthy appeal (when she was known by a different name) in which she attempted unsuccessfully to have records of that case sealed. While her personal experience might well have shaped her view on police, it is irrelevant to what Little Rock police videos depicted in the Thompson case and, now, to the landmark law she has established.

She's also leased billboards to display sometimes enigmatic messages. For example, one by the Gander Mountain store said:

"When the justices are away, the opinion rats will play."

The justices appeared to have been in today.

Partne, several have noted, is "entrap" spelled backwards.

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