The executive director of Little Rock's Metropolitan Housing Alliance was found guilty Thursday of failing to comply with the state Freedom of Information Act, a Class C misdemeanor, over failing to produce public documents requested by the Arkansas Democrat-Gazette last fall.
Little Rock District Judge Alice Lightle ruled that housing alliance director Rodney Forte was "negligent" in not responding to the records-release requests within three working days, as mandated by state law. Lightle sentenced Forte to pay a $100 fine and another $140 in court costs.
"Any other result would defeat the purpose of the Freedom of Information Act and undermine the accountability of an agency," Lightle said, reading from a written order.
Tom Larimer, executive director of the Arkansas Press Association, said the ruling will "send a message" to other agency heads.
"It's unfortunate that someone has to be an example, but when you choose to take a direction that runs counter to the FOI, this is the price you pay," Larimer said. "The law is there for a reason."
In October, Prosecuting Attorney Larry Jegley issued an arrest affidavit against Forte after the Metropolitan Housing Alliance sent the Democrat-Gazette a cost estimate of $16,378 -- the price, the agency said, of hiring temporary workers and buying extra supplies in order to comply with one of the newspaper's information requests.
Jegley said Thursday that he was "pleased" that Lightle upheld "the public's right to know."
"Quite frankly, in 25-plus years of doing this work, I've never seen a more arrogant and egregious violation of the Freedom of Information Act," Jegley said. "We've had our share of Freedom of Information complaints over the years, but normally the offending party gets right with the law and complies. In this particular case, I just think it was over the top. I don't think it was any way to run a publicly funded agency."
The cost estimate sent to the newspaper was in response to its last and largest information request, which was for all of the agency's work orders from January 2012 through October 20, 2014, as well as any complaints filed with the agency during that time.
The defense illustrated the size of the request during a May 14 trial. Stacked against one wall of the courtroom were seven cardboard boxes full of approximately 16,000 documents -- roughly half of what would have to be turned over to the newspaper, the attorneys said.
Lightle addressed the size of the request Thursday, saying the agency still had the obligation to comply.
"While the requests were numerous and may have been burdensome, the law requires access to public records," she said.
The housing agency still has not provided the newspaper with the requested documents, or parts of other requests, Deputy Prosecuting Attorney Leigh Patterson said.
Lightle said she did not have the authority to mandate that the Metropolitan Housing Alliance comply with the information requests that have not been fulfilled. That order would have to come from a higher court or the state Legislature, she said.
The Democrat-Gazette could file a civil case in Pulaski County Circuit Court to pursue obtaining the records, Patterson said.
"Although he has been found guilty, the Gazette still doesn't have the records. The housing authority is still in noncompliance at this point," she said.
Danny Shameer, the Democrat-Gazette's city editor, said it hadn't been determined whether the newspaper would take the case to a higher court.
"I hope Mr. Forte and the agency will comply with our FOI requests that are still outstanding," Shameer said. "We will continue to cover the agency just like any other agency."
Forte has 30 days to appeal Lightle's decision to the circuit court.
Forte's lawyer, N.M. "Mac" Norton of Little Rock-based Wright, Lindsey & Jennings LLP, said, "We'll of course be talking about it."
In Forte's trial and again after the ruling Thursday, his attorneys questioned whether the prosecution appropriately charged Forte. He was involved only minimally in back-and-forth emails between the newspaper and the agency, and he directed another housing alliance employee to handle the requests, his lawyers said.
"This is a novel issue, whether the head of the agency is responsible for any negligence in the agency with the FOI," Norton said after the ruling. "One way to look at it is that Larry Walther is guilty of a misdemeanor if Kay Barnhill is late responding to an FOI request."
Larry Walther is the director of the Arkansas Department of Finance and Administration. Kay Barnhill is the state personnel administrator.
In response to that argument, the prosecution said records-release requests were directed to both Forte and Marshall Nash, the employee Forte assigned to handle them. Democrat-Gazette reporter Chelsea Boozer, who filed the requests, testified at trial that she repeatedly attempted to contact both men in following up on her requests.
Lightle said the evidence showed that Forte was "directly and indirectly involved" in corresponding with the newspaper about the information requests.
And she determined that Forte, as director of the Metropolitan Housing Alliance, is the custodian of the agency's records.
"As such, it was his duty to act for and on behalf of the agency in response to requests under the Freedom of Information Act," Lightle said.
The state's Freedom of Information Act states that those who negligently violate the statute be charged with a Class C misdemeanor, which is punishable by a fine of up to $500 and 30 days in jail.
But Norton said Thursday that this case was "inappropriate" and "odd" for a criminal proceeding.
"She [Lightle] can't order him to produce the documents. That has to come from a circuit court," Norton said. "Fine, he gets a $100 fine, but they still don't have the documents."
David Bailey, Democrat-Gazette managing editor, said the newspaper wanted to handle it as a criminal case so that taxpayers wouldn't be responsible for paying Forte's attorneys fees.
"This was such an egregious case that we didn't think it would be fair for the taxpayers to bear that burden," Bailey said. "We wanted to be sure he bore those costs himself."
Though Forte was convicted in his role as head of the Metropolitan Housing Alliance, he personally paid for the legal fees associated with the case, Norton said in an email Thursday.
After the ruling, Forte quickly exited the Little Rock District Court building. When contacted via phone later, he said he would comment only through a news release. Kenyon Lowe, chairman for the Housing Authority board of commissioners, also did not comment but said a news release would be distributed Thursday or today.
A release was not provided by Thursday evening. Other commissioners could not be reached.
A Section on 06/05/2015
