OPINION: Guest writer

ROBERT STEINBUCH: 'Photo' finish

FOIA case hinges on ‘copy’ meaning

Attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA). The police refused to allow Motal to copy the report by taking a photograph using his cell phone. He sued.

In response, the city filed a motion to dismiss, arguing that a citizen must choose to either inspect, copy, or receive a government record--notwithstanding the metaphysical impossibility of this claim. How can you copy a record without at least somewhat inspecting it--with your eyes closed?

Then, the city argued that a photograph is not a "copy." Remarkably, the trial court judge, Mackie Pierce, agreed. He said that "if the Legislature wanted to give you the right to photograph public records, they could have easily used the word 'photograph.' They didn't. They used 'copy' and 'copying.' And when I think of a 'copy,' I think of running it through either a photocopying machine or a facsimile machine. ... But a photograph is an entirely different animal. A photograph can be Photoshopped®, it can be altered ..."

The Legislature's job is not to provide a list of 87 action verbs every time it writes a statute. The Legislature writes, hopefully in plain English, and the courts' job is to reasonably interpret those words. Indeed, that's why Noah Webster wrote his first dictionary. The reasonable interpretation of "copy" is not only through using "photo" copying and facsimile machines, as Pierce contends, it also clearly includes photographing through a phone.

Moreover, Pierce's contention that a photograph can be Photoshopped but a copy machine document cannot be easily altered is substantively and procedurally wrong. That is, as anyone who has ever used White-Out knows, copies made on paper photocopiers are easier to alter than copies made with high-resolution cameras. The latter have too much detail to easily alter.

Furthermore, no trial took place in the Motal case whatsoever. Pierce didn't allow it. Yet, he made a finding of fact--which requires a trial--as to how difficult it is to alter a photograph versus a paper copy.

Pierce also dismissed the case because the city relented after being sued, and it provided the records directly to Motal without any need to photograph or otherwise copy them. We see this type of legal manipulation all the time, wherein public entities comply with the law only after being sued and then seek to Jedi-mind-trick their way out of litigation by asserting in court that "there's nothing to see here--move along, move along."

The result too often is that only attorneys and those who can afford attorneys have rights, because they can sue. If you're a regular Joe, you don't have any rights, say the city and the trial judge, because they've orchestrated it that there's no precedent to protect you when the city repeats the same bad acts they did to Motal.

Luckily, all but one of the judges on the Court of Appeals hearing the case said that "copy" means "copy." Indeed, the Court of Appeals, in an excellent opinion written by Judge Kenneth Hixson, cited my co-authored book on the FOIA, which addressed this very point. (By the way, if Motal used a "scan" app on his phone, then it wouldn't be a photograph; it would be a scan. What then? This further demonstrates the sophistry of the city's argument.)

The linguistic gymnastics proffered by the city, and parroted by Pierce, make a joke of the rights that Arkansans are entitled to. No legislator who wrote the FOIA would've ever dreamed up such a convoluted interpretation of the law; an interpretation, no less, that properly causes citizens not to trust the legal system.

The Court of Appeals further said that the city can't avoid review of its anti-transparency efforts by complying with the law only after being sued. (I made this argument to the Supreme Court when Judge Tim Fox botched a FOIA case also. We sued and settled the records request, but sought review of Fox's dramatically wrong order. Chief Justice Dan Kemp ignored me.)

Little Rock City Attorney Tom Carpenter has since announced that he wants to go to the Arkansas Supreme Court to overturn the near-unanimous decision of the Court of Appeals that properly interpreted a simple, yet important, provision of the FOIA. I don't think he'll be successful. But he doesn't care what his chances are. He doesn't need to make an analysis of the costs of litigating the city's gag-worthy arguments, because he doesn't have to pay for his bad choices. He gets to use our tax money to fund his personal anti-transparency, bureaucracy-defending efforts.


Robert Steinbuch, professor of law at the Bowen Law School, is co-author of The Arkansas Freedom of Information Act, now in its sixth edition. His opinions are his own.

Editorial on 05/22/2020

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