Open-records ruling deferred

Judge orders sides in UA System case to submit briefs

A January 2013 public-records request was so broad that fulfilling it would have forced the temporary shutdown of the Arkansas Water Resources Center, an attorney for the University of Arkansas told a judge Monday.

Scott Varady said a request by former employee Wade Cash under the Arkansas Freedom of Information Act would have involved between 12,000 and 16,000 emails over a five-year period beginning in 2008. Instead, the university provided 2,521 emails that contained the word "Wade" from the two specified email accounts.

Rick Woods, Cash's attorney, told the court that many of those pages were "one-liners" because everything else on the page had been redacted. State law allows for redactions if the information is exempt from public disclosure.

Woods has said his client was wrongfully fired from his job at the Water Resources Center in August 2012.

"I think he's looking to clear his name," Woods said, adding that Cash wants the records for "the ammunition to show he wasn't fired for misconduct or other bad behavior, that's his main concern."

The Water Resources Center has three full-time employees. It is on the Fayetteville campus but is part of the UA System's Division of Agriculture.

Varady said UA attorneys asked Cash to narrow the scope of his open-records request. When he refused to do so, Varady told Cash the request could be fulfilled, but Cash would have to pay for a temporary employee to do the research.

"Mr. Cash refused adamantly the charge for his request," Varady told Washington County Circuit Judge Doug Martin on Monday. "Mr. Cash doesn't want to pay for it, but he does want to impose that burden on the institution."

Varady cited Arkansas Code Annotated 25-19-105(d)(3)(A)(i), which states that fees can't be charged for "personnel time associated with searching for, retrieving, reviewing, or copying the records."

But Varady said he found several attorney general's opinions indicating that when a Freedom of Information request was "so voluminous that the public entity can't respond to it, then you can absolutely look at using outside personnel, then those fees are passed on to the requester."

After listening to two hours of arguments Monday, Martin said he would have to defer his decision.

"I need some evidence beyond the pleadings in this case," he said.

The hearing was called on a motion to dismiss by university attorneys, but Martin said it had become a hearing for summary judgment, and he didn't have enough information to make that decision Monday.

"I just feel like I have to have some sworn testimony to rely on," Martin said.

Varady suggested putting Cash on the stand because he was already in the courtroom, but Martin said he also would need testimony from someone at the university about how much work retrieving the requested emails would entail and how much that would cost.

Martin gave both sides 20 days to file briefs in the matter.

After the hearing, Woods said he planned to file an amended complaint within the next 10 days, and he hoped that would clarify confusion about what exactly Cash is requesting.

Varady argued that Cash's Jan. 8, 2013, open-records request was too broad because he asked for all emails "related to" accounts belonging to Brian Haggard, director of the Arkansas Water Resources Center, and Leslie Massey, who was another employee of the center. Cash also asked for cellphone records going back to the beginning of 2012 for both Haggard and Massey.

Citing Arkansas Code Annotated 25-19-105(a)(2)(C), Varady wrote in a March 11, 2013, email to Cash that the statute mandates that "the request shall be sufficiently specific to enable the custodian to locate the records with reasonable effort."

"You continue to ignore this requirement of the law, and your request is invalid," Varady wrote.

Cash was initially represented by Matt Bishop of Eureka Springs. On July 16, 2013, Bishop sent Varady an email saying Cash's open-records request was for all emails going to or from accounts held by Haggard and Massey, not all emails "related to" those accounts, which would be a broader interpretation of the request.

Bishop's email was meant to clarify the initial Freedom of Information request, Woods told the court Monday.

But Varady argued that Bishop's email amounted to a second request, so it replaced the initial request.

In the July 16, 2013, email, Bishop wrote: "Please consider this email an FOI request for the records previously requested by Mr. Cash, with the modification regarding the phrase 'related to.'"

But the lawsuit filed by Cash against the university in June was based on the Jan. 8, 2013, Freedom of Information request, Varady said.

"Only through legal alchemy can you say the superseding FOI is the same as the original FOI," Varady told the court. "It's not."

"Clearly the plaintiff was requesting all incoming (received) and outgoing (sent) correspondence relating to the two email addresses as set forth in the request," Woods wrote in a Sept. 16 brief. "This was further clarified by the Bishop email. ...

"The university has a long history of not wanting to answer FOI requests," Woods told the court, eliciting an objection from Varady.

Woods said the purpose of the Freedom of Information Act was the ensure openness and transparency.

"The university's not trying to hide anything here," Varady said. "The FOI isn't 'just turn the records over.'"

Varady said UA employees have to identify the requested records, determined whether they're public, then redact any information in the records that is exempt, such as Social Security numbers.

NW News on 09/23/2014

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