Oh, Hoxie, bless your heart
Recall my previous reporting about the city of Hoxie’s refusal to comply with the Freedom of Information Act. I discussed how, when presented with a FOIA request by Hoxie City Councilman Darrell Pickney for a personnel file and police video, City Attorney Nancy Hall asserted a made-up exemption—claiming that she could somehow delay responding until the Legislature voted on a then-pending bill to gut the FOIA.
After I implored Hall to comply with the law, she provided the personnel file but not the police video, incorrectly claiming the city wasn’t required to produce the latter, because Hoxie didn’t purchase redaction software.
When I referred Hall to my FOIA treatise, she 1. called me an ass, 2. declared herself uninterested in my book, and 3. demanded I not write to the email she was using (and signed “City Attorney”) because it was her personal account.
Hall’s rant continued: “The citizens of Hoxie do not wish to purchase expensive software with funds that could be used on the roads and for the public good just to assure [the requester] and other non-citizen third parties do not have to pay for their personal requests.”
How noble of Hall to decide that compulsory-government disclosure should take a back seat to potholes. Her desire notwithstanding, the law mandates that government entities redact their records without charging requesters—although it remains unclear to me what she thought needed to be removed from police videos.
Pickney has since sued the city for several violations of his FOIA rights. One violation occurred when Pickney asked for a city-surveillance video. Hall attempted to charge Pickney to have a private vendor provide the video, rather than having a city employee satisfy this indisputably governmental function. Circuit Court Judge Rob Ratton correctly ruled that the city cannot pass on the cost of hiring outside personnel to retrieve the footage—something state Rep. David Ray also sought to permit statewide through his FOIA-gutting bill introduced at the end of the last general-legislative session. Thankfully, Ray’s bill failed.
That bureaucrats are still inappropriately trying to charge for public records—notwithstanding clear prohibitions in the FOIA—demonstrates why the grassroots efforts coordinated through Arkansas Citizens for Transparency to enact a constitutional amendment and initiated act to protect government transparency (uh, disclosure) are critical for the well-being of the state.
Another FOIA violation occurred when Pickney sent a public-records request to Hoxie Mayor Dennis Coggins for a recording of a city-council meeting. Remarkably, only after Pickney sued—on the day before trial—did the city bother to contact its information-technology specialist to retrieve the video. (See, I told you that Hoxie didn’t need an outside vendor to pull videos.) The recording was finally turned over the morning of trial. Does anyone still buy the claim that FOIA litigation isn’t necessary to pry free public records from intransigent government officials?
These delaying tactics also demonstrate the sheer folly of Representative Ray’s additional failed legislative effort to allow those subject to the FOIA to determine whether to extend the law’s compliance deadline by three-fold plus one.
When Stan Morris from Northeast Arkansas Report spoke to Mayor Coggins, he said he now plans to employ a full-time staff member to handle FOIA requests. Huzzah, there’s an idea 57 years in the works.
“We’re going to get [FOIA responses] out in three days,” Coggins said. “But it just hurts the city, because the people [are] using this FOIA to bring lawsuits against people, and that’s all Pickney was trying to do. It’s nonsense. The people who really need to be called out here who are doing something wrong, you never hear anything about them. But the people trying to learn this cotton-picking FOIA … it’s a mess to me.”
Judge Ratton saw it differently, writing: “[A]lthough Hoxie Mayor Dennis Coggins testified that he does not know about FOIA, it is his responsibility to ensure that the City of Hoxie strictly complies with the requirements of FOIA.”
Indeed, Pickney was far from litigious. He repeatedly contacted me for non-litigation assistance. And I attempted in vain to communicate with Hall, explicitly to avoid Pickney having to sue. I was unsuccessful.
The judge also ordered the city to pay Pickney’s court costs and attorney’s fees. Some unscrupulous opponents of transparency, in advocating against the proposed constitutional amendment and initiated act to protect government disclosure, falsely conjure up a grand conspiracy by a roving band of greedy lawyers to use the FOIA to rake in big bucks.
But the truth is that only a handful of lawyers in the entire state will even take a FOIA case, precisely because they’re both difficult and unprofitable. And when FOIA attorneys do win, their court-ordered compensation is invariably exceedingly modest.
This anti-disclosure conspiracy-theory claptrap was on spectacular display during the last special session when a government bureaucrat testified in favor of yet another FOIA-killing bill co-sponsored by Representative Ray. She asserted that an unnamed FOIA attorney absurdly sought attorney’s fees of $1,000/hour—in a case he lost, no less. Only after listening to the entire outlandish statement did I deduce that this fonctionnaire was describing one of my cases!
There was only one small technical problem with this fantastical testimony from Arkansas’ version of Sir Humphrey Appleby: It was entirely false. I won that case, and I didn’t ask for $1,000/hour—not even remotely close—even though I’m worth every bit of it! (Incidentally, the request hasn’t even been ruled on yet.)
Sadly, this make-believe is what too often passes for legitimate debate in politics. Rest assured, I’ll call out such lies the same way I spotlight government officials who violate the FOIA—right here in black and white.
This is your right to know.