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Democrats, ACLU get files on felon flagging

by Brian Fanney | August 13, 2016 at 4:15 a.m. | Updated August 13, 2016 at 4:15 a.m.

Secretary of State Mark Martin's office Friday provided documents, related to how it flagged voters as felons, to the state Democratic Party and the American Civil Liberties Union of Arkansas, both of which sought the files under the state Freedom of Information Act.

But late Friday, the Democratic Party said in a statement that it was unhappy with the time the office took to provide the response and said more documents should have been included. The party also said it was likely to file a lawsuit.

Martin, an elected official, is a Republican. The secretary of state's office notified county clerks in June that it had updated the statewide voter database by flagging 7,730 registered voters that the Arkansas Crime Information Center said were convicted of felonies.

The data was flawed; some people shouldn't have been on the list, including some who were not convicted of felonies. Others already had regained their right to vote. County clerks had to determine which people needed to be struck from voter rolls.

It was the first update in nearly two years. The data had been generated by Arkansas Community Correction, but when a key employee there died, updates lapsed. Martin's office determined that it should request the data from the Arkansas Crime Information Center under Amendment 51 to the state constitution.

"We were provided, as you know, public records today and those records should have been provided to us within three days under Arkansas law," said Chris Burks, general counsel for the Democratic Party, in an interview. "No public official is above the law. You can't decide if you want to answer some Freedom of Information requests but not others."

According to emails previously provided by the Democratic Party, Burks emailed the records request to Martin spokesman Chris Powell on Aug. 3. On Monday, Powell denied the request.

"We do not believe we are under an obligation to disclose these records," Powell said in the Monday email to Burks.

On Wednesday, a Democratic Party official said the attorney general's office had intervened and the secretary of state's office would comply with the request. The party received the response to its request -- several hundred printed pages -- on Friday.

In a letter given to Burks on Friday with the documents, Powell referred to "your extension of time" in one part of the letter. Powell could not be reached for comment late Friday.

Burks said he never agreed to an extension.

The Freedom of Information Act states: "If a public record is in active use or storage and, therefore, not available at the time a citizen asks to examine it, the custodian shall certify this fact in writing to the applicant and set a date and hour within three (3) working days at which time the record will be available for the exercise of the right given by this chapter."

On Friday, Powell also wrote that "many of your requests did not meet the FOIA's requirements that requests be 'sufficiently specific to enable the custodian to locate the records with reasonable effort.'" The letter did not state which parts were not sufficiently clear.

"There was nothing vague in our request. Our request was specific, lawful and very clear," Burks said. "Even if, you suppose for the sake of argument, our request was unclear, why don't they just turn over all the documents?"

Finally, Powell wrote the office was not obligated to "compile and tailor electronic data" and "we respectfully decline" to do so.

According to the Freedom of Information Act: "At his or her discretion, a custodian may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible."

The act continues: "Where the cost and time involved in complying with the requests are relatively minimal, custodians should agree to provide the data as requested."

Burks said Martin's office did not make an argument that the data were confidential under Arkansas law, and should have provided it.

"Of course we want everything," he said. "Voting is a fundamental right."

Powell also declined to provide to Burks data his office received from the Arkansas Crime Information Center and the Arkansas Department of Health. He cited statutory exemptions in both cases. The Health Department provides Martin's office with information about Arkansans who have died.

Burks said he did not plan to challenge those decisions in any potential lawsuit.

In an email to the Arkansas Democrat-Gazette, Holly Dickson, legal director for the state ACLU, said she needed to look at the records she received under her separate request, but did not rule out a lawsuit.

"We will review the records to see what they reveal about the problems and steps taken by the state to ensure illegal stripping of voters' rights will be undone and not repeated in the future -- with the [Arkansas Crime Information Center] or any other information," she said. "If they don't act with all due diligence and speed, then court involvement is inevitable."

The Arkansas Democrat-Gazette received the secretary of state's responses to the state Democratic Party and the American Civil Liberties Union's requests under a Freedom of Information Act request with the office.

About 1.7 million people are registered to vote in Arkansas. The general election is Nov. 8 and the last day to register to vote in that election is Oct. 10.

A Section on 08/13/2016

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