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Circuit judge must decide whether texts on state phone are private or public, Arkansas Supreme Court rules

Must sift public messages, justices say by Stephen Simpson | December 17, 2021 at 7:47 a.m.
FILE — The Arkansas Supreme Court is shown in this file photo.


The Arkansas Supreme Court on Thursday sent an open records case back to circuit court, saying the lower court judge must decide which messages on a state-issued cellphone are public and which are personal.

The Pulaski County Circuit Court ruling on Sept. 14, 2020, making the records public was reversed and remanded by the Supreme Court, where several justices found that what constitutes a "public record" has limits even when it involves a state-issued phone.

The Freedom of Information Act case involves messages between then-Department of Information Systems Director Mark Myers and a vendor's representative, identified as Jane Doe.

The Arkansas Democrat-Gazette requested access to the messages under the Freedom of Information Act and Myers and Jane Doe asked the lower court to block the request.

The Supreme Court told the circuit court to perform a detailed content-based analysis and to separate the messages to determine whether they fall within the information act's definition of public records. Once the circuit court has determined which, if any, individual messages are public records, Myers and Doe may raise their right-to-privacy arguments and the circuit court must conduct the appropriate weighing test for each item before ordering disclosure, justices ruled.

Justice Barbara Webb dissented with the majority, writing that it's vital in a democratic society that public business be performed in an open and transparent manner. She said the messages in this case make it clear that the personal relationship of Doe and Myers does not consist of vague nuances but is intermingled and intertwined with, and inseparable from, their professional one.

"It is disturbing to view the relationship dynamics of Doe and Myers while considering that during the times they were engaged in this conduct, Myers was a policy and decision-maker at DIS who awarded an $8.2 million contract to Doe's employer," she said. "Contrary to Doe and Myers' claims, this is the exact type of public record and information that should be disclosed under FOIA. The circuit court did not err when it found the same. Therefore, I respectfully dissent."

Oral arguments were held in November, when Maximillan Sprinkle, an attorney for Myers, and Erin Cassinelli, an attorney for Jane Doe, both argued that the newspaper and in turn the public don't have the right to all their private messages.

Alec Gaines, the attorney for the Arkansas Democrat-Gazette, told the court this case was simply about public interest.

Myers, who was appointed as Information Systems director by Gov. Asa Hutchinson in January 2015, resigned Nov. 23, 2016, at the governor's request, then-Hutchinson spokesman J.R. Davis said at the time. Davis called it "a personnel matter" and declined to elaborate.

The personal relationship between Myers and the vendor's representative became public knowledge after a deputy legislative auditor told state lawmakers in June 2017 that it appeared Myers violated standards of conduct in state law, potentially wasted state resources and failed to adhere to the department' technology policy, on the basis of a review of three projects costing $8.2 million.

At that time, Myers defended the three purchases in a letter distributed to lawmakers, saying the purchases were well below the prices the department could have paid for the equipment and that he didn't "exercise discretion in favor of another person due to any personal relationships, real or perceived."

After the audit was released in 2017, Davis said the governor "was made aware of the findings months ago and acted immediately and appropriately."

At that time, the Democrat-Gazette submitted a written Freedom of Information Act request to both Arkansas Legislative Audit and the Department of Information Systems seeking any correspondence between Myers and any representatives of Cisco Systems.

Both Legislative Audit and the Department of Information Systems denied the request, citing a law that temporarily exempts public records that are part of an ongoing criminal investigation. That investigation has since closed, sources said later.

In December 2019, the newspaper renewed the 2017 information request. The department then notified Myers that someone had requested his records under the law and that it intended to release the BlackBerry Messenger messages.

Myers filed a lawsuit in Pulaski County Circuit Court on Jan. 9, 2020, asking the court to issue a temporary restraining order.

Several days later, Jane Doe, through her attorneys, asked for permission to intervene.

On July 20, 2020, the circuit court communicated with the parties that it intended to rule that all messages at issue had been reviewed and that they qualified as public records because they inextricably intertwined personal and public business such that there was a substantial nexus between the two and that no exceptions shielded the records from disclosure.

The circuit court determined that Doe's claim of a constitutional privacy interest was not sufficient to shield the records from disclosure and that "Jane Doe's identity is integral to this issue and, therefore, should be disclosed."

In an interview Thursday, Gaines said the circuit court must now go through more than 3,000 messages to determine what can be released to the public.

He said he was disappointed with the ruling, but looks forward to expediting the case at the circuit court level.

"This is an FOIA case and they are supposed to be submitted expeditiously," he said. "It has been four years now. It's beyond time that we move this along and get a final decision on this now."


Print Headline: Cellphone records case returned to lower court

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