The Arkansas Freedom of Information Act requires government agencies to provide documents electronically when they have the ability to do so rather than force open-record requesters to accept -- and pay for -- the more expensive paper copies, the Arkansas Court of Appeals ruled Wednesday.
The issue of whether the government can require people seeking public records to take paper copies when they've asked for digital versions was before the court because the Pulaski County Special School District had challenged the legality of a ruling by Pulaski County Circuit Judge Chip Welch, who ruled last year that the district broke the law.
Wednesday's appeals court ruling is the second time the district has been found to have violated the state's open records act regarding this request by Stephen Nicholas Delaney.
Welch had ordered district officials to provide Delaney with the 1,816 pages of documents he'd requested and in the electronic format he'd asked for and for free, instead of the $272 they had wanted him to pay for the paper documents they said were easier to give him.
Delaney sued under the Freedom of Information Act after the district insisted he accept paper copies and pay for them.
The school district was charging 15 cents per page, an amount that Delaney, represented by attorney Matt Campbell, argued violated the law. Campbell reported that the district's records show its copying costs are actually one-third of a cent per page for black-and-white copies and 4 cents for color.
Electronic documents are generally much cheaper than paper because the Freedom of Information Act allows government agencies to charge only for the actual costs of reproducing a document.
"A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the [record] custodians' existing software," Welch wrote in his order, citing the language of the open-record law, Arkansas Code 25-19-105.
The judge stated that since the school district has the ability to scan documents and provide them electronically, it must do so.
Welch also noted that the school's 15-cent per page rate appears to be "unsupported and unreasonable," but he did not rule on that issue since he had ordered the district to give Delaney the records for free.
The district's lawyers, Jay Bequette and Cody Kees, contended in their appeal that the records Delaney wanted were either not immediately available in a digital format or not convenient to convert to an electronic form.
Wednesday's decision upholding Welch's ruling was written by Appeals Court Judge Larry Vaught and endorsed by fellow Judges Robert Gladwin and Kenneth Hixson.
The district had complained that Delaney's request, which required converting some paper documents into digital versions, was too much work, but Vaught stated that that excuse had been considered and rejected by the Arkansas Supreme Court seven years ago in another Freedom of Information lawsuit, Partne Daugherty v Jacksonville Police Department.
Vaught wrote that the school district did not show sufficient evidence of hardship, considering the conversion resources available to it, and that the Freedom of Information law does not allow state agencies to decide the format in which they will provide records just because they find one format more convenient.
"There is no provision within section 25-19-105 that permits a custodian to decide what medium it will provide records to a citizen based on the number of records it must redact or based on its preference to have a hard copy of documents produced pursuant to [open-records] request," Vaught noted.
The district's attorneys also argued that converting paper records to an electronic format is the equivalent of creating a new record, which the law says agencies don't have to do. Vaught declined to address that claim because the schools had not made that argument during the original lawsuit.
Delaney requested the records in January 2018, but school authorities said he wanted too many records, some of which were only on paper, to easily convert to a digital format.
The district's scanner could only accommodate 20 pages at a time, so fulfilling Delany's request would have required 90 sets of pages and taken a day of work. The district's printing contractor can scan about 150 pages at a time, but charges extra for the service, district officials testified during the original lawsuit.
The district also claimed it had to print out some of the records so they could be redacted before giving them to Delaney. The district's practice is also to print out its own copy of Freedom of Information requests for its own records.
Delaney had asked for five years' worth of records to show school payments to five law firms -- Allen P. Roberts, Mitchell Selig Gates, Fuqua Campbell, John Walker PA and Bequette & Billingsley. He had also asked for seven years' worth of financial documents related to Mills High School and Robinson Middle School, plus three months of financial reports that had been submitted to the School Board last year.
Still pending in circuit court is a request by Campbell that the district pay his fees and reimburse him for the expenses of bringing the lawsuit.
Welch, the circuit judge, has already ruled that winning the suit makes Campbell, who operates the Blue Hog blog, eligible for reimbursement by the district. Campbell estimated he was out $9,610 as of September.
Also pending before the judge is a request by Campbell to hold the district in contempt for not immediately turning over all of the records as quickly as the judge had ordered. A significant number of the records were also improperly redacted, Campbell told the judge in September.
School lawyers countered that they had turned over all of the records as quickly as possible, contending that the contempt accusation is just Campbell's way of running up the cost of the litigation.
Metro on 04/11/2019