Truths and consequences
Today’s column continues my extended series on the Arkansas Freedom of Information Act with the happy story of how a Little Rock federal court issued a ruling protecting the FOIA—for now—against an attempt by the Arkansas attorney general to limit the sunshine law’s application.
In that case, the state attorney general asserted that government is immune from the state FOIA when a case is in federal court. The court said otherwise.
FOIA attorney Abtin Mehdizadegan—who overcame the infirmity of having once been my student—made a FOIA request for records relating to legal proceedings he has against the state. In response, the attorney general’s office asserted that because the case is in federal court rather than state, the office is entitled to block the FOIA’s use. There is no dispute, even from the attorney general, that no such get-out-of-jail anti-FOIA motion would be entertained if the case were in state court.
In the state attorney general’s motion to exempt the state from the application of state law, he “acknowledge[d] the important purpose of the Arkansas Freedom of Information Act, but [nonetheless asserted that] the use of the law as a sword to gain advantage in litigation does not advance such purpose. Here, [said the attorney general] Plaintiffs and/or their counsel have specifically requested information that is protected by the federal common law attorney-client and work product privileges . . .” (Italics added.)
Luckily, we need not guess as to the purpose of the Arkansas FOIA left unspecified by the Arkansas attorney general, because the explicit intent of the Arkansas Legislature is stated within the law itself: “It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.
“Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.”
So, you’re free to decide, without outside assistance, whether the use of the state’s FOIA by a plaintiff, his counsel, or any Arkansas citizen, for that matter—while state, county, or local government is a defendant in federal litigation— advances such a purpose.
The court—rejecting the assertion of a conflict between the purpose of the FOIA and its use in the case—declared: “I fail to see any harm in the requested information being available for public view, or any unfair advantage gained by Plaintiffs … The Arkansas FOIA clearly permits a citizen to compel disclosure of public records from state and local entities regardless of the citizen’s status as a litigant.”
The attorney general’s office also decried, “Plaintiffs resort to hyperbole and invective to obscure the issues before this Court. Defendants have simply asked this Court to enter an order that both this Court and two other judges in this district have entered in similar cases. Rather than explain why the reasoning in those cases is erroneous, Plaintiffs respond with a flood of vituperation, calling the request ‘uniquely dangerous and silly,’ claiming that it ‘betrays the fundamental principles of representative democracy’ and ‘betrays every Arkansan with an interest in honest government.’
“Plaintiffs accuse the Attorney General of ‘playing fast and loose with the facts and law.’ And perhaps most bizarrely of all, Plaintiffs now assert that the Attorney General does not represent the named defendants in this matter; they insinuate that the Attorney General’s representation of the prosecuting attorneys in this matter could be criminal conduct; and they claim that the Court ‘should strike all submissions made by the Attorney General on behalf of all Defendants.’”
The court—unpersuaded by the attorney general’s threadbare lamentations over alleged “hyperbole and invective”—stated that the attorney general’s “claims that Federal Rules … prohibit the use of Arkansas’s FOIA in lieu of discovery to obtain documents in support of one’s case, after a lawsuit has been filed and a federal court’s jurisdiction has been engaged … is simply not true—and none of the legal authority cited [by the Attorney General] supports it.” (Italics added.)
That’s the truth—and them’s the consequences.
This is your right to know.