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Fulfilling email request ruled 'unreasonable'

Ex-UA worker wanted 5 years of files by Jaime Adame | April 23, 2015 at 3:13 a.m.

FAYETTEVILLE -- A circuit court judge Wednesday ruled that a former University of Arkansas employee's request for five years' worth of emails from two former co-workers failed to satisfy a provision within the Arkansas Freedom of Information Act that such requests be specific enough for records to be located with "reasonable effort."

At the end of a one-day, nonjury trial, Washington County Circuit Judge Doug Martin did not remark on an issue raised about whether costs associated with hiring extra personnel to prepare records for public disclosure could be passed on to the person making the request, instead finding that Wade Cash's request was "not valid."

"I think that's all I'm going to say. I think that's all you're asking me to decide," Martin said.

Cash filed a lawsuit in June seeking emails to and from the accounts of former co-workers at the Arkansas Water Resources Center, part of the UA System Division of Agriculture.

Cash, who was fired in August 2012 from his job as a technician with the center, claimed in his lawsuit that the University of Arkansas had failed to comply with the Arkansas Freedom of Information Act. When Cash had asked for "all incoming and outgoing email correspondence," he was instead provided with emails specifically concerning him, according to court documents.

Later, a letter to Cash from an associate general counsel for the University of Arkansas System stated there would be a cost of approximately $6,757.50 to pay for additional personnel to review and copy the records Cash sought.

Court documents filed by the university cited Arkansas Code Annotated 25-19-105, which states in part: "The request shall be sufficiently specific to enable the custodian to locate the records with reasonable effort."

Martin also remarked on the importance of the "reasonable effort" language, although he noted there were few related court cases from the past to help him make his judgment.

"I'm not going to try to draw a bright line reading of the law," said Martin, referring to testimony about the weeks or months it would take the workers to review tens of thousands of emails for the time period specified in the request. The effect on university operations, also a part of the two former co-workers' testimony, "was certainly relevant," Martin said.

By law, most student records and many personnel records may not be disclosed publicly, so emails must be reviewed before their release, said Scott Varady, an associate general counsel with the UA System.

Cash's former co-workers -- Brian Haggard, director of the center, and Leslie Bartsch Massey, now an engineering instructor at the University of Arkansas at Fayetteville -- testified in court Wednesday about the time it would take them to review their email.

Haggard testified that he had about 16,000 email "threads," and it would take about "60-plus" eight-hour days to sort through the threads, with many of them including several emails. He said he based his estimate on the time it took him to search his email for the records that were turned over to Cash.

Bartsch Massey said it would take about 33 and one-third days for her to review the emails.

Both said that, at the time, they did not use their university email accounts except to have messages automatically forwarded to their Gmail accounts, thus mixing work and personal messages. Rick Woods, the attorney representing Cash, said in court it was not his client's fault that the mixing of work and personal messages created more records to review.

Woods also argued that the workers could hand over their emails for review to an attorney representing UA. Both workers said they would be willing to give their Gmail password to a university representative to comply with the law.

Varady spent much of the trial arguing that Cash failed to narrow his request because he said Cash "was intransigent," despite being told repeatedly that his request was too broad in scope.

Varady said Cash's initial request made in January 2013 was for correspondence "related to" university email addresses for the workers, and that it took until July 2013 for the university to receive a clarification dropping the "related to" language and instead asking for incoming and outgoing mail from those addresses.

Cash took the stand first in the trial.

"I didn't realize this 'related to' qualifier was such a big deal," said Cash, noting that even after a phone conversation with Varady he did not understand the "related to" language in his email was an issue.

Asked why he sought the records, Cash said, "I'm trying to clear my name."

David Curran, a deputy Arkansas attorney general, helped give a closing statement for UA's case, emphasizing the interest public agencies have in "operating efficiently."

Speaking after the trial, Cash said he was disappointed with the ruling. He said he did not know whether he would seek to file a more narrow request or appeal the judge's decision.

During the trial, Varady told Martin the lawsuit was frivolous and "bad faith litigation," and that "we are seeking our expenses in this matter."

In his decision, Martin did not mention any expenses to be paid. After the trial, Varady said the university would need to have discussions about whether a motion would be filed to seek recovery of expenses associated with the case.

Metro on 04/23/2015

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