Arkansas Secretary of State hit with FOIA lawsuit

Arkansas Secretary of State Mark Martin could soon be defending himself in front of a judge after liberal blogger and lawyer Matt Campbell filed suit against the Republican yesterday (July 1) for failure to comply with a Freedom of Information Act request.

The suit, filed in Pulaski County Circuit Court, seeks to force Martin's office to turn over documents Campbell, managing editor of the Blue Hog Report, had asked for in a June 10 FOIA request.

The request was for files attached to e-mails Campbell had received from an earlier FOIA request on June 2. The first request was for e-mails relating to a wrongful termination lawsuit involving two former State Capitol police officers, who have also made claims of racial discrimination in their lawsuits.

Campbell said the issue regarding the documents was about the types of documents he had requested versus what he has received.

"It basically comes down to the format I'm going to be able to get records in, despite the language of what the statute is."

The files, which Martin's press secretary Alex Reed printed and mailed to Campbell, had originally been requested as the original files in electronic form, which would have been Word files (.docx).

In the lawsuit, Campbell, who is representing himself, states that Arkansas FOIA law permits citizens to "request a copy of a public record in any medium in which the record is readily available," which would include the Word files he had previously requested.

The files themselves are from an outside law firm, Chisenhall, Nestrud and Julian, P.A., which had been assisting the Secretary of State's office with the wrongful termination suits.

According to Campbell, Martin's office had paid the firm about $60,000 despite having attorneys on staff who had the final say in all matters relating to the lawsuit. He is trying to determine what work the outside firm has completed to merit the $60,000 payment for services rendered.

A part of Campbell's lawsuit sure to draw attention is the matter of destruction of records. In response to Campbell's insistence that the records be turned over after more than three days of waiting for a response, Reed provided Campbell with .pdf files he had requested, "but opaquely suggested that the e-mail containing the relevant .doc and .docx files had been deleted," the suit reads.

In a June 19 blog post on the matter, Campbell included language from an e-mail Reed sent, in which he said, "Paper copy of emails had been printed and kept. They were provided to you previously in response to your request, however some attachments were not retained."

In response, Campbell requested a copy of the offices e-mail retention policies.

"(It said e-mails are deleted) every 30 days to keep e-mail inbox clean," Campbell said Monday. "Every e-mail I received (in my original FOIA request) was longer than 30 days. The two .pdf and the two printed Word documents were from e-mails that were older than 30 days."

More importantly, Campbell said, the Department of Finance and Administration has said that the Secretary of State's office is subject to the DFA's rules for record retention, which is three years.

"It is clear that just because it is an e-mail, it does not exempt it from these rules."

Campbell also goes after the method in which Reed delivered the requested files, stating in the lawsuit that Reed and other record custodians cannot determine the delivery method of a FOIA request.

"There is no provision of the AFOIA that allows a custodian of records to require a citizen to accept public records in a medium of the custodian's choosing."

The suit was filed against Secretary of State Mark Martin, instead of Reed or others who may have been directly involved in the request.

"Freedom of Information Act lawsuits against a state agency or an elected constitutional officer is still technically a lawsuit against an office itself," he said. "Instead of narrowing who did what, it's a suit against the entire office in its official capacity."

In the lawsuit, Campbell is specifically asking for the following court actions:
• Find that Martin, either in bad faith or negligently, failed to comply with the FOIA with respect to Campbell's June 10 request;
• Order Martin to fulfill Campbell's request as required by state law;
• Find that Martin may not rely on his office's current e-mail retention policy; and
• Order any relief that the court deems proper.

Reed said Monday (July 1) he had no comment for himself or Martin because "we haven't been served with (the lawsuit) yet."

Campbell cautioned that his lawsuit is not a personal attack on Martin.

"The disclosure under the Freedom of Information Act is defined and sent out by statutes that the democratically-elected legislature has put in place and it is not subject to the whims of the constitutional officer," he said.

Campbell expects the case to go to trial sometime in September.