Justices hear UA dorm records case

LITTLE ROCK — Arkansas Supreme Court justices expressed some skepticism Thursday that a group of building contractors could sue a private company to gain access to records related to the construction of a $35 million University of Arkansas dormitory.

Contractors for Public Protection Association wants Nabholz Construction Corp. to turnover receipts and other records detailing the cost of building the Fayetteville campus complex known as the Northwest Quad. The contractors' group contends that the Arkansas Freedom of Information Act requires Nabholz to turn over the documents, and Pulaski County Circuit Judge Marion Humphrey agreed in a ruling in March.

But Nabholz appealed to the Supreme Court, arguing in partthat it's not subject to the state open-records law.

Justices heard from both sides in oral arguments Thursday, focusing most of their questions on why the contractors' group didn't sue the university, or at least make it a party to the lawsuit.

Ron Hope, attorney for the contractors suing Nabholz, said there seemed to be no reason to sue the university because UAdidn't have the records in question.

"We felt like the university gave us what they had. ... We had no reason not to believe them," Hope said.

The Contractors for Public Protection Association wants a detailed account of the Nabholz charges as part of the group's investigation into the state practice of hiring building contrac-tors without competitive bids. Most of the general contracts for the state's priciest construction projects have been awarded that way since 2001, when the Legislature allowed the practice for state agency projects that cost more than $5 million.

State officials who prefer the method, including top employees at most of the state institutions of higher education, say taxpayers get a better deal when contractors are chosen based on their track record and not solely on price.

The plaintiffs in the lawsuit want the law changed, however, and they're inspecting construction expense records statewide to support their argument. In the case of the UA residence hall, the contractors want a detailed accounting of $2.5 million that UA paid Nabholz for expenses, known as "general conditions," as well as other itemized costs.

Nabholz asserts that the information is proprietary and not public record, but most of the argument Thursday centered on whether the private company could be considered a custodian of records under state law.

Hope told the court there's no doubt that Nabholz is the keeper of the records because the company didn't turn over "a single receipt" for the entire project.

Justice Donald L. Corbin asked Hope whether UA should have provided the documents after obtaining them from Nabholz.

"Isn't that the responsibility of that agency? Shouldn't they be the one you go after?" Corbin said.

He asked if there have been any allegations of wrongdoing.

Hope said no but that the public should have the right to see the records to make that determination.

Justice Paul Danielson asked Hope if he thinks the Legislature intended for private corporations to determine what to release under the Freedom of Information Act.

"Because under your theory, that's what's going to happen - a private entity is going to make the ultimate decision of what's a public record," Danielson told Hope.

Hope argued that Nabholz essentially agreed to share such information when it signed a building contract with a state agency.

In his circuit court ruling, Humphrey said turning over the records is "the cost of doing business with the state."

Hope asserted that the situation is not unlike that in the case of City of Fayetteville v. Edmark, which involved documents inthe possession of law firms hired by Fayetteville officials. The city refused to turn over the documents, arguing in part that they weren't public records because they were in the hands of a private contractor.

The Supreme Court disagreed in a 1990 ruling, saying that the law firms were the "functional equivalent of the regular city attorney" and the Freedom of Information Act "cannot be circumvented by delegation of regular duties to one specifically retained to perform the same task."

Jeffrey H. Moore, the attorney for Nabholz, said the current case is different in part because the company is not performing duties that would otherwise be performed by the university.

But Hope said Arkansas law authorizes state universities to construct buildings so Nabholz is in fact doing work that the university otherwise would have hired employees to do.

Justice Annabelle Clinton Imber pointed out that in the Edmark case, the city of Fayetteville was a party to the lawsuit.

Hope said the interested parties are in the current lawsuit and that it wouldn't be a wise use of time or resources to make Contractors for Public Protection Association start over by suing UA.

Moore argued that there's no basis for a plaintiff to sue a private corporation directly under the Freedom of Information Act.

There wasn't a lot of discussion Thursday about whether the records themselves are subject to disclosure.

Chief Justice Jim Hannah asked Moore if Nabholz would have supplied the records in question to UA, if asked.

Moore said that didn't happen, so he doesn't know what records Nabholz would have turned over. Some of the information may have been redacted, Moore said, adding that he was speculating.

Imber read from the contract with UA, which states that the university as the project owner has the right to inspect, audit and copy account records.

Fred Harrison, general counsel for UA, said in an interview Thursday that the university never sought the records because "there's not necessarily a need for the university to keep or have them."

Harrison was a witness in the circuit court trial and said he'd prefer not to comment further until the Supreme Court makes its ruling.