A Pulaski County circuit judge asked state lawyers Thursday whether their interpretation of Arkansas' open-records laws would give too much authority to Arkansas State Police to decide when vehicle-crash reports should be made public.
A Freedom of Information Act lawsuit against the police agency has Judge Mary McGowan considering how much time officials have to release the reports.
She heard arguments and questioned both sides about their positions during a 60-minute hearing Thursday. Her ruling is expected in the coming weeks.
A question McGowan raised at the hearing and returned to several times was whether the state lawyers' position -- that police are allowed a "reasonable" time to release records -- gives too much authority to the agency to decide when reports must become public.
In a suit filed last month, the Brad Hendricks Law Firm of Little Rock accused the state police of violating open-records law by delaying the release of the reports. An investigator for the firm testified that the state police office in Hope would only release four or five reports to him in the same time frame that he used to get 40 or 50 reports.
Hendricks attorneys Tre Kitchens and Caroline Lewis said state police are violating the Freedom of Information Act, which requires local and state government agencies to produce requested records immediately.
If the records are in active use or storage and not available immediately, the law requires an agency to set a date and time within three working days for when the records will be made available to the person requesting them.
The law does not give police any grounds to delay releasing records the way the agency has been doing, Kitchens said.
"They just don't want to give them to us," he told the judge. "The court is being asked to read things into the law that are not there."
Kitchens pointed out that the state police publishes reports of fatality crashes on its website -- within 24 hours -- as evidence the agency can release records within a day.
"They can produce this information. They've demonstrated they can do it," he said. "They just don't want to."
The Hendricks suit is the second time in just more than a year that a law firm has gone to court to challenge the way the state police has been releasing the reports.
This lawsuit was filed in June, six weeks after the Arkansas Supreme Court rejected agency arguments that all identifying personal information on the crash reports should be withheld from the public.
The state police claimed that the personal information on the reports is derived from driver's license records that Congress barred from public access in 1994. The state's lawyers argued that the federal law withholding the information superseded the state Freedom of Information Act.
First a circuit judge then the state Supreme Court in May rejected that argument, all in response to a lawsuit filed last year by another Little Rock law firm, The Wren Firm.
Recent court filings show that Attorney General Leslie Rutledge has begun the process of asking the U.S. Supreme Court to overturn the state court ruling.
The sides in court Thursday clashed over whether the Wren case has any application to the Hendricks suit.
Kitchens told the judge that the defense presented Thursday by state lawyers is "diametrically opposite" to the arguments they made in the Wren case about how the Freedom of Information law should be applied.
Insurance companies don't face the same restrictions in obtaining reports that lawyers do, Kitchens also noted, suggesting that authorities are deliberately favoring one commercial enterprise over another.
"We need this information to serve our clients," he told the judge. "They [clients] need the information we supply."
State lawyers hotly denied the accusations of favoritism by police, noting that the laws controlling public access to the reports was changed to recognize the interest of insurers in the event of a car crash.
State police officials say they've had to slow down releasing reports because a 2013 law written by state Sen. Eddie Joe Williams, R-Cabot, requires all police agencies to withhold the identity of children involved in car crashes. The law took effect in 2015.
Reviewing the crash reports to determine if redactions are required can be time-consuming and often has to be completed by secretaries with other duties who must find time to conduct the reviews, state lawyers asserted in their response to the Hendricks lawsuit.
The state police, represented by the attorney general's office, contend that they are complying with the law -- just not the law that the Hendricks firm says applies, the Freedom of Information Act.
"The [Freedom of Information] time frame doesn't apply here," Assistant Attorney General Colin Jorgensen told the judge.
Jorgensen contends the release time for crash reports is dictated by Arkansas Code Annotated 27-53-209 of the state Traffic Code, which requires the records be released in a "reasonable" amount of time.
He asked that the lawsuit be dismissed because the Hendricks firm had cited the wrong law in its suit.
Jorgensen said the "reasonable" standard deliberately gives police flexibility in the time authorities need to prepare crash reports for public release.
Releasing one report is faster than the bulk releases that the Hendricks firm gets, he said.
The Traffic Code law states that "All motor vehicle accident reports made by the Department of Arkansas State Police, and its records of traffic violations, shall be open to public inspection at all reasonable times."
The law was specifically written to exclude crash reports from the the three-day release time set by the Freedom of Information law, Jorgensen told the judge.
A similar exclusion from the open-records law is the statute that requires state police to sell its crash reports for $10 each, even though the Freedom of Information Act generally restricts how much agencies can charge for copying public records to the actual cost of preparing them, Jorgensen told the judge.
Metro on 07/22/2016