Little Rock Mayor Frank Scott Jr. vowed in his 2019 inauguration speech to make openness one of his governing philosophies.
"As your mayor, I will lead in a manner that embraces transparency, with your demands front of mind and your perspectives at the table, guiding the future of this great city, Little Rock," he said at the time.
But consistent access to the electronic correspondence of top city officials, including the mayor, via the Arkansas Freedom of Information Act is not guaranteed, records show.
Because state law is silent on how long the electronic correspondence of municipal officials should be retained, a Little Rock city employee who frequently purges their inbox could effectively circumvent the disclosure requirement and prevent individuals who might later file a FOIA request from obtaining the correspondence.
In a recent interview on the city's approach to maintaining electronic correspondence, Scott cited the language of Little Rock's email-retention policy.
According to a copy of the procedural guidelines on network security and email retention, "E-mail should be retained only as long as it takes to transfer the data to the primary system of storage for that data. This should be accomplished within thirty (30) days unless the business and/or legal function requires additional time."
The document, last revised in 2020, goes on to state, "E-mails determined to be transitory, shall be purged from the users [sic] mailbox and all deleted folders immediately."
In the interview, Scott said, "So we don't normally keep anything more than 30 days, if we keep anything." He added, "That's the long-standing city of Little Rock retention policy, even prior to me."
In the same interview, which was conducted by phone, senior mayoral adviser Kendra Pruitt said that not all correspondence would require storage. She referred to 311 requests submitted via email that would have to be stored within 30 days.
"It says that other forms of communication should not be kept," she said. "Obviously, some people do keep things, but their recommendation from I.T. is because of storage space -- server space, things of that sort -- they suggest that we do not maintain emails longer than 30 days."
Pruitt added, "Obviously, if you can delete it within a day or a week, that's even better. But it should not be retained over 30 days unless there's a legal requirement or a business requirement that is ongoing work."
Asked if the state's open-records law would constitute a legal requirement to retain records, Scott deferred to the city's legal counsel.
"That's a legal question to our city attorney," Scott said. "Again, our city attorney's aware of this email retention policy."
He added, "We provide records that are responsive to the request of the FOI. Always."
In a follow-up exchange via email, Pruitt provided a response from the city's information technology director, Randy Foshee, as to whether city emails are kept or maintained elsewhere after they have been deleted.
"Once deleted completely those emails are not stored or maintained," Foshee wrote.
In certain instances, FOIA requests for Little Rock city records have returned limited or largely irrelevant results.
A request submitted in February for correspondence between Scott and his chief of staff, Charles Blake, during a time frame of a little less than a month returned no responsive records from Scott, according to a response from the city's FOIA coordinator.
A subsequent request for correspondence between Scott and Blake between February and May returned nine pages of email records from the mayor's office.
In another example, an FOIA request for drafts, working copies or final versions of Scott's planned 2021 State of the City address was submitted to the city March 18, one week before the speech was scheduled to air.
When the city completed the request March 22, the only document directly related to the speech's content was a single-page outline devoid of full paragraphs or much information beyond general headings.
The mostly empty outline said to acknowledge 2020 and covid-19. It also included three words in bold: "unite," "grow" and "transform," apparently to serve as markers delineating planned sections of the speech. But below those words, the remainder of the page was blank.
At the time, when asked via email if a full draft of the speech was available, the FOIA coordinator responded, "Per the custodian, the Mayor's office has submitted everything relevant to this [FOIA] request."
When mayoral spokeswoman Stephanie Jackson was asked in March if the mayor's address was filmed without any draft or written form of his speech, she wrote, "As far as I'm aware, the City only has in its possession what is already provided in the FOIA."
The broadcast aired March 25. Scott spoke for approximately 20 minutes during the portion of the virtual event devoted to his address, in which he laid out his "Rebuild the Rock" sales-tax proposal in detail.
Last month, the Arkansas Democrat-Gazette requested, "Emails sent and received by Frank Scott Jr. at his official and/or personal email addresses." The time frame for the requested records was Jan. 1 to May 10.
But when the city's FOIA coordinator on June 1 returned a response to the request, the document contained just 27 pages. They included several news releases, as well as an email from Scott to city directors updating them on a May 8 police shooting.
Additionally, records provided by the city in response to the request did not include emails from the Democrat-Gazette sent to Scott during that time period.
In a recent interview, Little Rock City Attorney Tom Carpenter suggested that the FOIA and Arkansas Supreme Court cases have established no record-retention aspect to the law that would apply broadly to local electronic correspondence.
Asked how the city's retention framework for electronic correspondence is different from a public employee who might choose to shred paper documents or memos immediately after they are sent, Carpenter said, "It's not. I mean, if it's not maintained, it's not maintained."
He added moments later, "A lot of people in government don't keep emails for that reason."
Substantive correspondence by email or text related to city business, such as a hypothetical sale of city property, would probably have to be maintained at least until the action on the property was taken, or possibly 30 days after the action if there was a question of a referendum, Carpenter said.
"And then you really don't need to keep it," he said. "If you want to keep it, you can. If you do keep it, it's a public record."
Carpenter said common sense would say to retain records in other situations and referred to records documenting compliance with environmental laws.
"I think that there's probably people who get rid of everything, and I think they do so at their own peril," he said. "And I think there's probably people in the city that are pack rats and don't get rid of anything."
Local attorney John Tull, who represents the Arkansas Press Association, said via email that he was not aware of a local standard for retaining electronic correspondence.
Robert Steinbuch, a professor at the University of Arkansas at Little Rock's William H. Bowen School of Law, said the state's open-records law "itself is not a records-retention statute."
Arkansas has a records-retention statute that applies to state government, Steinbuch said. "To the best of my knowledge, there's no records-retention statute by the state for localities," he said.
Localities can enact their own ordinances and procedures for retaining records, he said.
A 2005 Arkansas law provided for the development of rules and guidelines governing the retention of records, electronic or otherwise, of state agencies with an eye to the 1967 Freedom of Information Act.
However, the law expressly did not apply to cities, counties or other local governmental bodies.
Steinbuch said he had heard examples of public employees being encouraged to destroy records as soon as possible.
"Even if this is legal, it certainly is done to undermine government transparency," Steinbuch said, arguing that invariably, there are no storage issues motivating the destruction.
"The destruction is usually done for the purposes of interfering with transparency," Steinbuch said. "And so it undermines the democratic process of allowing citizens directly, or through their quasi-representatives, the press, from evaluating what goes on in government."
He described the practice as "a real problem," and said he was willing to work with the Arkansas Legislature during the next legislative session to address it.
"It's cringe-worthy, and it should be discouraged," Steinbuch said.