Judge rules text messages subject to disclosure

LITTLE ROCK — Text messages between a state agency director and vendor’s representative are public under the Arkansas Freedom of Information Act and the representative’s name “should be disclosed,” a Pulaski County circuit judge ruled Monday.

“The messages reflect the performance or lack of performance of official functions because they inextricably intertwine personal and public-business matters such that there is a substantial nexus between the two,” according to the order from Judge Chris Piazza.

The messages, requested under the Arkansas Freedom of Information Act, are at the center of a personal relationship between former Department of Information Systems Director Mark Myers and a vendor’s representative that raised questions a few years ago about three state projects with that vendor, totaling $8.2 million.

Myers sued the Department of Transformation and Shared Services secretary Jan. 9, asking a judge to block the release of messages he exchanged at the time on his state-issued cellphone with the vendor’s representative.

The Democrat-Gazette and the vendor’s representative, identified as Jane Doe, intervened in the case.

On July 20, the court notified the parties it had reviewed each text messages at issue and found they “inextricably intertwined personal and public business.”

“Since no exemptions shield the records from disclosure, the messages must be disclosed in their entirety,” according to Piazza’s order.

Doe filed a motion for clarification and associated relief, but it was denied.

“Jane Doe’s constitutional privacy interest is not sufficient to shield the records from disclosure,” according to Piazza. “The public policy interests in this case weigh heavily in favor of disclosure — the public has a strong, undeniable interest in how public taxpayer money is spent and what influence Doe’s relationship [with] Myers had on that spending.

“Jane Doe’s identity is integral to this issue and, therefore, should be disclosed. It is her identity that makes the messages a matter of public interest — her prior employment position and her personal relationship, and how those intersected with state business.”

Piazza denied Doe’s request her name be redacted from the documents. Names of family members, however, should be redacted, according to the ruling.

“The defendant is instructed to release the records to the Democrat-Gazette within 10 business days,” wrote Piazza. “Plaintiff’s amended complaint is dismissed with prejudice.”

Also on Monday, attorneys for Doe filed a motion for stay of judgment pending appeal.

“Intervenor asks the court to stay the portion of its ruling releasing the messages at issue in this matter pending a judgment from the Court of Appeals or Supreme Court on appeal,” according to the motion. “A stay is necessary to preserve the status quo while the appellate court issues a final decision.”

The Department of Transformation and Shared Services determined in January the messages were public information, and it intended to release them.

Before the agency could release the messages, Myers filed the lawsuit asking the court to issue a temporary restraining order.

“[Myers’] personal and professional reputation will be irreparably harmed by the release of the messages at issue in this dispute,” Myers’ attorney, Maximillan Sprinkle of Little Rock, wrote in a brief supporting a motion for a temporary restraining order.

Myers, who was appointed as director at the Information Systems Department by Gov. Asa Hutchinson in January 2015, resigned Nov. 23, 2016, at the governor’s request, then-Hutchinson spokesman J.R. Davis said. Davis called it “a personnel matter” and declined to elaborate. Myers’ salary was $137,360.

The personal relationship between Myers and the vendor’s representative became public knowledge after a deputy legislative auditor told state lawmakers in June 2017 it appeared Myers violated standards of conduct in state law, potentially wasted state resources and failed to adhere to the department’ technology policy, on the basis of a review of three projects costing $8.2 million.

At that time, Myers defended the three purchases in a letter distributed to lawmakers, saying the purchases were well below the prices the department could have paid for the equipment and he didn’t “exercise discretion in favor of another person due to any personal relationships, real or perceived.”

After the audit was released in 2017, Davis said the governor “was made aware of the findings months ago and acted immediately and appropriately.”

In June 2017, Legislative Audit legal counsel Frank Arey denied the Democrat-Gazette’s request for the names of the vendor, the vendor representative and two resellers mentioned in the audit, citing an ongoing criminal investigation.

And in August 2017, Department of Information Systems general counsel Anthony Black denied the newspaper’s request for correspondence between Myers and any representative of Cisco Systems, citing Arkansas Code Annotated 25-19-105 (b) (6), which exempts undisclosed investigations by law enforcement agencies of suspected criminal activity.

Eventually, sources said the investigation had ended.

In response to the newspaper’s recent request for that information, Arey said an audit document identifies the vendor as Cisco; and the resellers as World Wide Technologies and Presidio.

The vendor representative “left Cisco in August 2017,” said Helen Saunders, a spokeswoman for Cisco.

The Democrat-Gazette requested the correspondence and the department provided more than 1,600 pages of emails and 400 text messages between Myers and Cisco representatives, including the vendor representative.

Alex Johnston, a spokeswoman for the Transformation and Shared Services Department, said there were 3,000 additional messages subject to the newspaper’s request and Myers’ lawsuit.

Sprinkle, the attorney who represents Myers, asked Attorney General Leslie Rutledge to opine that additional messages were “private conversations had over a direct message application on Myers’ state-issued Blackberry” and are exempt from release under the Arkansas Freedom of Information Act.

Sprinkle said in a Jan. 3 letter to Rutledge that Myers asserted the messages aren’t public documents under the law and, in the event Rutledge determines they are public documents, Sprinkle believes they would be exempt from release under the law.

“The messages in question … were obtained after Myers left employment with the state of Arkansas due to an investigation concerning certain procurements he was involved in,” Sprinkle wrote in the Jan. 3 letter.

“The messages are personal and private communications between Myers and a personal friend,” he said.

He said Myers concedes an objective party could determine some of the messages are releasable under the Freedom of Information Act because the friend also was a state vendor who did business with the then-Department of Information Systems.

“However, on the whole, the messages are mostly friendly banter and personal communications between two people,” Sprinkle wrote in his letter to Rutledge.

“Most critically to Myers is the fact that the messages contain deeply personal exchanges, musings and information that could potentially create significant embarrassment to him and his acquaintance if they are made public,” he said. Information for this article was contributed by Michael R.Wickline and Hunter Field of the Arkansas Democrat-Gazette.