FEARS OF ‘self censorship’ in records request cases
Obtaining emails under Arkansas’ Freedom of Information Act can be difficult because the subject of the request often is asked to sort through his own electronic messages to determine which are public and private, said John Tull, a Little Rock lawyer.
“So much of the consternation we all feel is how do you police it?” said Tull, who has represented the Arkansas Democrat-Gazette in Freedom of Information Act matters involving the University of Arkansas.
At the Fayetteville campus, when emails are requested under the public-records law, the university’s coordinator for the law notifies employees who may have potentially “responsive” documents, said John Diamond, former chief spokesman for UA.
But letting employees sort through their own emails to determine what should be given to the media can result in “self-censorship,” said a Freedom of Information advocate.
“You’re making the custodian of records the arbiter of what’s public and what should I give up,” said Mark Caramanica, Freedom of Information Act director with the Reporters Committee for Freedom of the Press in Arlington, Va.
“The actual practice on the ground can vary and deviate from what they should be doing,” Caramanica said. “If they don’t provide you all the records responsive to that request, then in essence they’re not following the law.”
In December, UA provided numerous documents to the Democrat-Gazette in response to a public-records request about a $3.3 million deficit in its Advancement Division. Among those documents was some email correspondence between UA officials regarding the deficit.
The emails referred to other documents that weren’t released, so the Democrat-Gazette asked for them. But UA officials said those documents were exempt from the law because they were personnel records.
The newspaper sued Feb. 11 to obtain the additional documents, including results of an investigation by UA treasurer Jean Schook. UA obtained consent from two former employees to release the documents, still maintaining they were personnel records, and the newspaper agreed to drop the lawsuit.
Included in that release of documents Feb. 15 were hundreds of emails that hadn’t been released in December. The additional emails painted a clearer picture of actions UA officials took after discovery of the deficit in July 2012.
More recently, the newspaper filed a request July 22 for more than a dozen officials’ correspondence on three matters — the deficit, efforts to balance the Advancement Division budget and a restructuring of the division. UA produced one document.
Diamond, who was fired Aug. 22, said he was dismissed for objecting to UA administrators’ efforts to obstruct the release of information about the Advancement Division deficit, including responses to records requests.
The release of so few documents “indicates to me at least is a breakdown in the search and retrieval process,” said Caramanica.
There needs to be a “neutral, detached level of oversight to make sure everything is getting captured,” he said.
Caramanica said it would be better to have one person, such as an information-technology employee, to be the custodian of all of a state institution’s electronic records.
“That way, you don’t run that possibility that people are self-censoring,” he said.
PERSONAL OR PUBLIC
Such an approach could be difficult in Arkansas, Tull said.
A public employee’s personal use of a work computer is a record of their performance, said Tull. It could indicate that an employee was sending personal messages when he should have been working, he said.
But the Arkansas Supreme Court issued an opinion in 2007 in Pulaski County v. Arkansas Democrat-Gazette indicating “not all emails on a public employee’s office computer are subject to FOIA,” said Tull.
The Supreme Court ruled that a private review was necessary to determine if the emails “constitute a record of the performance of official functions that are or should be carried out by a public official or employee,” quoting the law.
City and county attorneys have interpreted the ruling to mean that employees have a right to privacy concerning personal emails, and requested emails must be reviewed to determine if they’re subject to the law, said Tull.
“In light of the case and that interpretation by state, cities and counties, I anticipate that [ UA] would argue that [an information-technology] person could not simply turn over all emails from a employee’s computer but assert they each must be reviewed,” he said.
“Does the UA have an IT person who could do that?” asked Tull. “Would that violate privacy issues?”
RESPONSIVE DOCUMENTS
UA officials said Diamond was fired because of insubordination to his new supervisor, Chris Wyrick, but Diamond has released numerous records since his firing showing he differed with other administrators, including Chancellor G. David Gearhart, about how to handle records requests.
In an Aug. 26 letter to Wyrick, Diamond said he had implemented a policy of informing UA employees in writing of what could be responsive documents related to a request. But Wyrick changed that policy to ask employees orally for responsive documents.
“I believe the negative consequences of orally and individually asking for responsive records are obvious: it becomes very easy for individuals to misinterpret exactly what is being asked for as opposed to giving them specific written instructions that are shared uniformly with all possibly affected parties,” Diamond wrote.
In the letter, Diamond also cited the July 22 request from the Democrat-Gazette in which UA provided only one “responsive” document.
Providing only one document “was not accurate,” Diamond wrote, “based on the email exchanges, documents and video that had been circulated on campus.”
By instructing Diamond to provide only one document to that records request, Wyrick had “put me in a position that jeopardized the university’s credibility,” Diamond wrote.
When contacted by telephone Friday, Diamond said he didn’t want to elaborate beyond the letter.
After the Democrat-Gazette filed a public-records request Aug. 27 reiterating the July 22 request — in part because of Diamond’s assertions — the university responded with hundreds of pages, mostly of copies of the Aug. 27 request from different employees’ email.
NEIGHBORS’ SYSTEMS SIMILAR
Frank Gibson, policy director for the Tennessee Press Association, said employees there also are asked to retrieve their own emails for records requests.
“They use the same system of asking employees/officials to determine if they have any emails that might be ‘responsive’ to the request,” Gibson said. “They do it that way here because our law does not prohibit use of government email for personal/private/business purposes. The only email subject to FOI law are those ‘made or received pursuant to law or ordinance or in connection with transaction of official business.’”
It’s basically the same in Texas, said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas.
“Texas has a relatively strong open-records law, as written,” she said.
“But the effectiveness of the open-records law depends on the person or governmental agency fulfilling the citizen’s request in a given case. Some are reluctant to acknowledge that government records are the business of the people, even though that’s the law.”
Violation of Arkansas’ law is a Class C misdemeanor with a maximum penalty of up to 30 days in jail and a $500 fine.
Casey Jones, the Fayetteville city prosecutor, handles misdemeanor crimes in the city. Jones last year charged a city employee with violating the public- records law.
Marilyn Heifner, executive director of the Fayetteville Advertising and Promotion Commission, pleaded no contest to the charge. Jones said Heifner had documents that she didn’t release to a reporter from the Northwest Arkansas Times in a timely manner.
The documents concerned a lease for the old post office building on the downtown square.
In interviews last year, Heifner told the Times she didn’t want to release sensitive information about a pending real estate deal.
Under the terms of a plea agreement, Heifner received a 30-day suspended jail sentence, and had to pay $220 in a fine and court costs. After one year without any further violation, her record will be expunged.
“Arkansas has a very liberal FOI law,” said Jones, “but even within that liberal FOI law, there are certain exceptions.”
Those exceptions include personnel and personal records, in addition to cases that are under investigation, he said.
But even personal email accounts can harbor public documents, said Caramanica.
“If it’s discussing public business, it’s public record, even if it’s on a personal email address,” he said.
RETENTION OF RECORDS
UA has a policy on “retention of records,” which states that each department is responsible for this function.
“The university doesn’t have a public records center or records liaison officer, therefore it is necessary for each department to provide its own records management,” according to Rule 218.0 of the Fayetteville campus’s Policies and Procedures, which was drafted in 1992 and last updated in 1998.
Email isn’t mentioned in the document.
Under “Electronic Storage,” the policy states: “Records with long retention time should be transferred to Microfiche, Optical Disk or some other technology that offers more efficient storage than paper.”
In most cases, unofficial documents can be destroyed at the end of the fiscal year, according to the policy.
UA has fired two employees in connection with the deficit in the Advancement Division.
In the treasurer’s report, Schook found that the former Advancement chief, Brad Choate, had provided “essentially no oversight” of the division’s finances and had gone so far as to give his computer login credentials for approving high-dollar transactions to his budget director, Joy Sharp.
Choate blamed Sharp for the problems, and Sharp acknowledged making mistakes.
The university fired both, but allowed them to work until the close of fiscal 2013 on June 30.
In February, Gearhart requested an audit by the Arkansas General Assembly. The Legislative Audit Division has been reviewing the material for months.
State auditors expect to present their findings Friday to the Legislative Joint Auditing Committee in Little Rock. Legislators say they hope to make the report public several days before the meeting.
The audit is the first look by an independent state agency into overspending by the university’s Advancement Division, which spearheads fundraising and other outreach efforts for the state’s largest university.
The division overran its roughly $10 million budget by about one-third in fiscal 2012.
School officials didn’t discover the problem until six days after the end of that fiscal year, on July 6, 2012, according to UA documents.