Information act wrinkle is cost of public records

Observer: Fees thwart spirit

FAYETTEVILLE -- A former University of Arkansas employee's legal battle to get five years' worth of emails from two co-workers remains unresolved more than two years after his original request.

This week, attorneys from both sides said they expect to return to Washington County Circuit Court in a dispute over costs associated with the request.

Experts not working on the case say they see similarities to a dispute in Little Rock and perhaps an emerging trend of Arkansas agencies passing on high costs to citizens seeking public records.

Wade Cash sued the university in June, claiming UA failed to comply with the Arkansas Freedom of Information Act. The state law "gives Arkansans access to public records and public meetings, with limited exceptions," according to the state attorney general's office.

Cash formerly worked as a technician at the Arkansas Water Resources Center, a part of UA's Division of Agriculture.

UA has argued that fulfilling Cash's request would require the hiring of extra help, something that Cash should pay for if he wants the records.

Rick Woods, the attorney for Cash, said the Arkansas information act states something different.

"Our argument is the act doesn't allow for that," Woods said.

The university told Cash before he filed the lawsuit that it would cost $6,757.50 to review and copy an estimated 14,000 to 16,000 records to satisfy his request.

A September hearing before Washington County Circuit Judge Doug Martin failed to resolve the case. Woods said this week that subsequent talks between the two parties also had stalled.

"So we're going to have a trial," Woods said.

No trial date has been set.

Robert Steinbuch, a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law, said state law sets narrow circumstances for the charging of labor related to satisfying a records request.

However, he said he has heard from someone in government that "there's a movement afoot" to start charging more broadly for labor.

"While such a movement may be afoot, so to speak, by government bureaucracies who don't want to comply with the FOIA, any such movement is contrary to the law," Steinbuch said.

He referred to a case in Little Rock, where a city housing agency last year sought more than $16,000 to bring in outside workers to fulfill a records request from the Arkansas Democrat-Gazette for work orders and tenant complaints dating back to 2012. The Pulaski County prosecuting attorney issued an arrest warrant in October for the head of the agency seeking to charge for the records, citing a misdemeanor violation of the Arkansas Freedom of Information Act. But the records have yet to be released to the Democrat-Gazette, and a trial is scheduled for May 14.

Scott Varady, associate general counsel based in Fayetteville for the University of Arkansas System, said UA tried to fulfill Cash's request by providing him emails from the former co-workers that mentioned him by name. The university charged Cash $119.75, according to documents filed in the court case.

"I think when you produce 2,521 pages of records, you show that you're acting in good faith to respond to the request," Varady said.

In January 2013, Cash asked UA for cellphone records -- including texts -- and emails related to accounts of two former co-workers. After UA provided some documents in March 2013, an attorney for Cash in July 2013 clarified that he was seeking all incoming and outgoing email from two email addresses. Cash's request was for emails from Jan. 1, 2008, to the present.

The university responded in October 2013 with the cost estimate, explaining that "review fees" would be about $150 per hour for the hiring of an associate attorney. The university has said a review is necessary to ensure nothing would be released violating privacy and personnel record exemptions that, for example, make some records not open to the public.

In the September court hearing, Varady argued that attempting to fulfill the request would have shut down the Arkansas Water Resources Center.

He repeated the argument to the Democrat-Gazette in an interview.

"This unit, even in connection with our office, doesn't have the resources to handle the request with existing personnel, and therefore we need to seek outside assistance," Varady said.

Arkansas Code Annotated 25-19-105 states in part that "any fee for copies" can be set to include reproduction costs "not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records."

Varady said state attorney general opinions in recent years support having the person requesting records pay for third-party costs associated with extra help. Opinions from the Arkansas attorney general are nonbinding.

Other states and the federal government have laws similar to the Arkansas Freedom of Information Act, but they vary both in scope and in what fees can be charged to citizens requesting records.

Asked about what supports his position, Varady noted that federal court decisions can be relevant as guidelines.

"I think the federal opinions support the university's position in the case," Varady said.

John Tull, general counsel for the Arkansas Press Association, said the case could have influence beyond UA.

"Other agencies and entities that are subject to the Freedom of Information Act certainly pay attention to positions taken by others, and there's often an effect, a domino effect," Tull said.

He said he is concerned that citizens may be thwarted in their ability to utilize the state information act because they can't afford to pay costs such as those in the UA case.

He also said he's concerned about such policies being applied arbitrarily by agencies.

"It it going to be that because they think somebody's a pain in the neck, we're going to arbitrarily say, 'You're going to have to pay $1,200 to get these 100 pages?' I don't think that's the intent of the Freedom of Information act," he said.

UA revised its records policy in July. The new policy states that "should it become necessary to engage additional personnel to comply with a request," search and review costs may be charged. Mark Rushing, a UA spokesman, said that since the policy's adoption, the university has not charged or attempted to charge anyone for "additional personnel" costs associated with a records request.

Metro on 03/13/2015

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