Subpoenaed Arkansas coroner delivers requested death reports

ARKANSAS CITY -- A southeast Arkansas coroner turned over what he said were six years worth of death reports Friday in response to a subpoena after he declined for several weeks to fulfill an Arkansas Freedom of Information Act request for the documents.

But an investigation into whether Desha County Coroner Joe Wilkin violated the open-records law remains active, a prosecutor said.

Deputy Prosecuting Attorney Crews Puryear last week ordered Wilkin to produce the records by Friday and to testify under oath after Wilkin disregarded multiple open-records requests filed by Arkansas Democrat-Gazette reporter Ginny Monk.

Prosecuting Attorney Thomas Deen of the 10th Judicial District said the investigation into whether Wilkin violated the open-records law is "not closed." Deen, the region's elected chief prosecutor for the past 18 years, said he had never issued a subpoena related to a potential Freedom of Information Act violation until last week.

"I'll review the tape recording, and I'll listen to what he had to say," said Deen, who was not present at Friday's hearing. "I'll listen to his explanation ... and I'll decide how to proceed after I listen to the tape."

Wilkin told Puryear under oath that he disregarded the request because Monk did not say why she wanted the records and because he wanted to protect family members who had lost loved ones.

"To be truthful with you, she never did tell me why she requested the records or what the purpose was, and I wanted to protect the people who had already gone through all this trauma," Wilkin said. "I didn't want anything written up about, you know, 'So and so that. The baby this, that.' That was my main concern."

People who request records under the Arkansas Freedom of Information Act are not required to disclose why they're requesting public documents, said John Tull, an expert on the state's open-records law and general counsel for the Arkansas Press Association.

Monk disclosed to Wilkin that she was gathering documents for stories about child fatalities, she said.

Lawmakers over the years have carved out dozens of exemptions to the open-records law to protect personal information and withhold other sensitive records from disclosure. Coroners' reports are public records.

"There's not a specific exception for people who are deceased," Tull said. "There is a sort of general catch-all for private matters, for which there's no public interest. But that's a higher bar. I certainly understand why [Monk is] looking at the incidents of fatalities in the state of Arkansas ... which is certainly of public importance."

It is a low-level misdemeanor to "negligently" violate the Arkansas Freedom of Information Act, with a punishment of up to 30 days in jail and a fine of up to $500. Criminal cases brought against people accused of violating the law are rare but not unprecedented. Arkansans who make unfilled requests may also sue for withheld records.

Ignoring a subpoena, or failure to appear, is a harsher misdemeanor charge that carries a potential punishment of 1 year in jail and a $2,500 fine.

Ronnie Bearden, a deputy with the Desha County sheriff's office, recorded video of Wilkin's testimony on a cellphone.

Wilkin retrieved 936 pages of coroner's reports from a camouflage-pattern duffle bag. He turned over rubber-banded loose papers and envelopes grouped by year to Puryear. The prosecutor questioned Wilkin for about six minutes, then delivered the documents to the circuit clerk's office, where they were scanned and emailed to Monk later on Friday.

Monk filed at least three open-records requests with Wilkin beginning in September, at least once by phone, once by email and once by certified mail. Monk sought all of the coroner's and his deputies' child death reports from Jan. 1, 2012, through Dec. 31, 2017.

Wilkin repeatedly declined to provide the documents.

The coroner told Monk on Sept. 26 he would charge the newspaper "thousands" of dollars so he could hire help to fulfill the request. The state's open-records law only allows officials to charge for the actual cost of reproducing the records, such as paper on which copies are printed or CDs on which electronic records are transferred.

When Monk told this to Wilkin, he declined the request. Later, after Monk informed Wilkin she had called Deen's office, he again refused to provide the documents.

"If you want that damn information, you're going to have to get it yourself," Wilkin told the reporter on Nov. 8, according to Monk. "I'm not going to do it. I don't care what the prosecutor or anybody says."

Eight days later, Wilkin delivered the documents as directed to the third floor of the Desha County courthouse annex building, a converted three-story schoolhouse in Arkansas City, a Mississippi River town and county seat with a population of 366.

Asked after his testimony Friday whether he violated the state law, Wilkin said he had not.

"I didn't violate the law," Wilkin said in an interview. "I'm trying to protect my people. That's what I'm trying to do. That's what I'm for. I'm an elected official for the people in this county, and that's who I'm here to protect."

The legislative intent of the Arkansas Freedom of Information Act says it is "vital" for the public to "be advised of the performance of public officials and the decisions that are reached in public activity and in making public policy."

Coroners are elected on a countywide basis in Arkansas, one of just 12 states that do not require coroners to be a licensed medical examiner or undergo initial or continuing training. They are responsible for determining the cause of death in many fatalities.

Wilkin, first elected in 2010, lost his re-election bid in the May primary and will leave office in January. He was a deputy coroner for about two decades prior to his first election, he said.

Wilkin's attorney, Priscilla Copelin-Neeley, was not present during the hearing. She listened to the proceeding by phone.

Deen said he does not remember ever filing a criminal complaint in an open-records case. Typically, when someone calls his office to report that a public official is not complying with the law, he writes a warning letter. He issued no such letter to Wilkin.

"After my deputy had a conversation with the coroner, after Mr. Puryear reported his conversation back to me, I did not feel he deserved a warning letter," Deen said. "So I had [Puryear] issue the subpoena."

Fewer than five criminal Freedom of Information cases have been filed within the past 10 to 15 years, Tull said.

"I applaud the prosecutor," Tull said. "It is not always that you get that sort of support from the prosecutor. I certainly appreciate the prosecutor taking the action and ensuring the law was followed."

Metro on 11/17/2018

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