No cases identified to verify FOI claims

Agencies say public-files law unfair

For weeks, lawyers for Arkansas’ two university systems and the state Highway and Transportation Department have told legislators that they face an unfair advantage in court because of the state’s public records law.

“Attorneys within the University of Arkansas system have had opposing counsel ask for deposition notes during depositions,” UA System general counsel David

Curran told the House State Agencies and Governmental Affairs committee on March 1. “That has happened.

“And we have had attorneys for opposing counsels ask for draft briefs before they are actually filed.”

The remedy, the lawyers have testified, is Senate Bill 373. The bill would exempt

attorney-client communications and attorney work product in “pending and threatened” lawsuits from disclosure under the state’s Freedom of Information Act.

Yet, in response to requests from the Arkansas Democrat-Gazette, not UA nor Arkansas State University systems nor the highway agency could cite a single, documented case in the past two years in which their attorneys were forced under the Freedom of Information Act to hand over legal strategies and other key documents to opposing counsel.

An Highway Department attorney who has testified in favor of SB373 said she could provide no records because such requests are usually made orally.

A Freedom of Information Act request “doesn’t have to be in writing,” Chief Legal Counsel Rita Looney told the Democrat-Gazette in an interview. If someone asks for records, “you make a copy and give it to them. There is no record.”

Looney and UA System spokesman Nate Hinkel said the mere possibility that opposing counsel might ask for strategic information creates a chilling effect on staff attorneys and forces them not to write things down.

“It is because of the risk of our records being requested, a risk that is actually based on the incidents discussed, that our lawyers refrain from communicating in writing with each other and with their clients and must look for ways to prepare for trial that will not give their trial strategy away,” Hinkel wrote in an email. “You only have to be FOIA’d once to have this alter your practice.

“Each time our lawyers prepare for a deposition, they know their deposition outlines

might be requested before the actual deposition date. Because of this, particularly when dealing with opposing counsel who have a propensity to use FOIA during litigation, the lawyers in our office have to consider the timing of when they prepare for the deposition and what they put down in writing,” Hinkel wrote.

“Having to practice in this fashion is a disadvantage to our lawyers and a disadvantage for the public because it is public dollars at risk,” his email said.

Though university system attorneys have testified in legislative hearings about documents being requested in court proceedings, they’ve said less about having to actually hand over such records.

“I was definitely under the impression that this was a significant problem that required legislation,” Rep. Kim Hammer, R-Benton, said this week, after learning that the three agencies couldn’t cite one such case where the Freedom of Information Act required them to turn over documents to opposing counsel in advance of court proceedings.

Sen. Bryan King, R-Green Forest, said, “I don’t think legislators understand.”

The bill’s sponsors, Sen. Bart Hester, R-Cave Springs, and Rep. Bob Ballinger, R-Hindsville, could not be reached for comment Thursday.

Shielding legal strategy documents from the public records law would “level the playing field” for state and private attorneys in lawsuits, UAMS chief general counsel Mark Hagemeier and other state agency attorneys have testified.

In an interview on radio

station KARN this month, Ballinger said people have abused the Freedom of Information Act for years.

“But it’s never been as bad as it is now. Now it’s happening on a regular basis that they’re abusing the FOIA process in order to get an advantage in litigation.”

Trying to “stop that advantage in litigation” is what SB373 is about, Ballinger said.

Opponents like Little Rock lawyer Glenn Hoggard have told legislators that SB373 would have a much wider impact.

The legislation is so broadly written that it would open “a gaping hole in the FOIA that you can drive a truck through,” he said.

The bill could allow state and local governments to withhold vast quantities of records from the public, according to opponents, including the Arkansas Press Association, the Advance Arkansas Institute and other open-government groups.

King said he worries about the wider consequences: “You will not be able to get the truth if public institutions can hide the truth.”

Richard Peltz-Steele, an author

of the Arkansas Freedom of Information Act book, said this week that he has not been aware of complaints about state agency attorneys being forced to hand over litigation documents to their opposition lawyers under the public records law.

“No & no,” Peltz-Steele said in an email. Now at the University of Massachusetts at Dartmouth, he was previously on the University of Arkansas at Little Rock law faculty and has studied and written about public records law for 20 years in Arkansas.

While the ASU System and the state Highway Department provided no litigation records that they were compelled to provide to opposing attorneys or any that put them at a disadvantage in court, the UA System cited other cases that involved legal records requests under the Freedom of Information Act.

The university voluntarily provided emails under the Freedom of Information Act in connection with one lawsuit, Hinkel said. That pending suit was filed by UALR law school professor Robert Steinbuch, who was seeking student admissions data.