LITTLE ROCK — The state Supreme Court ruled Thursday that the Jacksonville Police Department violated the state Freedom of Information Act when it denied a woman’s request for police recordings as “too broad or burdensome.”
When Partne Daugherty followed that with a second,even broader request, the department told her she would have to put up a deposit of $2,475 - a fee the Supreme Court found was unwarranted.
Daugherty made her requests in 2010 after being issued a speeding ticket for driving 51 mph in a 35-mph zone.
She asked for the dashboard camera-video footage of two police officers, as well as audio recordings from their body microphones, for a period of weeks around the time she was pulled over.
After her first request, the department sent Daugherty a letter stating that there were more than 400 separate recordings, “duplication of which will take too much time and is too broad a request in nature.”
Justice Donald Corbin wrote in the court’s unanimous decision that the department could have asked Daugherty to make her request more specific but being “broad and burdensome” is not a legal reason for a request to be denied.
“The department’s response, refusing to comply with the request, is in direct conflict with the act and with this court’s case law interpreting the act,” he wrote.
Daugherty was given a video showing her traffic stop, but she has argued that additional videos will show that police radar did not show her speeding. Corbin wrote that her request should have been fulfilled even if the department did not believe the recordings would be relevant.
“The [Freedom of Information Act] does not give the custodian of records the power to pick and choose which requests it may comply with. Nor does the custodian get to choose to release only records it deems relevant, such as the video of Daugherty’s stop in this case,” he wrote.
The court also ruled that the fee the department tried to charge Daugherty was illegal.
According to the ruling, the department arrived at the $2,475 by estimating the number of hours it would take to copy the requested records and multiplying that by the hourly salary of the officer who would do the copying - $27.51 per hour.
Arkansas Code Annotated 25-19-109, the state’s Freedom of Information Act, states that a custodian of records is not required to compile information or create new records if they do not exist.
When a custodian provides copies of a public record in a medium that is “readily available” or in “any format to which it is readily convertible,” the cost of providing the information cannot be more than the actual costs of copying, supplies, equipment and maintenance “not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records,” under state law.
But the law has a special provision for electronic records, giving a custodian the option to “tailor electronic data in a particular manner or medium” and to provide the data “in an electronic format to which it is not readily convertible.”
In such a case, the custodian can charge for the time an employee spends creating the new record or compiling the data.
The justices agreed with Daugherty’s argument that a custodian can charge for personnel time only in cases where information is requested to be released in a special format and the custodian agrees to go out of his way to compile it.
They also agreed that was not the case for her request - Daugherty was asking for copies of audio and video records that were routinely converted before being saved to a disk, and was not asking for any special type of conversion or compilation.
“Captain [Ken] Boyd’s testimony that he did not have the knowledge to transfer the records via USB to an external hard drive does not equate to a finding that section 25-19-109 applies to make the imposition of a charge acceptable in this circumstance,” Corbin wrote.
The court upheld the circuit court’s ruling that the department did not break the law when it told Daugherty in response to her third request that it had destroyed its video and audio records after 45 days, in keeping with its usual practice.
“Regardless of how improvident the department’s retention policy may be, the question is whether Daugherty proved that the department negligently violated the FOIA,” Corbin wrote. “The circuit court rejected this argument and we cannot say this was error based on the record before us.”
The court said it would not rule on whether the policy violated any state law other than the Freedom of Information Act.
April Kiser, a spokesman for the Jacksonville Police Department, said the department has not yet had a chance to review the ruling.
Daugherty said in an interview Thursday that she believes the ruling is a victory for people trying to access public records.
“A speeding ticket is a minor case. But sometimes there’s a lot more serious issues,” she said.
Daugherty said that’s why she requested dashboard camera video and audio recordings in the case of a Little Rock police officer’s altercation with state Surgeon General Joe Thompson. Thompson said the recordings showed that an officer’s account of the confrontation was not entirely accurate.
In that case, prosecutors agreed to drop a count of attempting to influence a public servant and agreed to withdraw two other misdemeanor counts - disorderly conduct and refusing to submit to arrest.
At the Supreme Court, Daugherty’s case is 11-344, Partne A. Daugherty v. Jacksonville Police Department; Gary Sipes, as Jacksonville Police Chief; and Gary Fletcher; mayor of Jacksonville.
Arkansas, Pages 11 on 06/15/2012