LITTLE ROCK -- A Pulaski County circuit judge on Tuesday gave the Arkansas Division of Workforce Services 24 hours to produce one set of records to a legal aid nonprofit for low-income people and until Friday to produce a timeline on how long it would need to review and redact another 60,000 pages the nonprofit has sought.
Judge Patricia James' decision came in a lawsuit the Legal Aid of Arkansas filed against the Arkansas Department of Commerce and its Workforce Services Division after the state unemployment agency repeatedly delayed over several months turning over the documents Legal Aid sought under the Arkansas Freedom of Information Act.
She also ordered the agency to turn over the second set of documents as they are reviewed and redacted weekly, a process that could take 600 hours for one person to accomplish, or as much as five months based on a 40-hour work week.
Legal Aid was seeking the documents to "better understand the problems" scores of its clients have encountered in filing unemployment insurance claims.
In addition to having trouble accessing claims, Legal Aid said its clients have faced "months-long application or appeals processing delays, wrongful denials, unsubstantiated allegations of fraud or overpaid benefits, lack of information about application procedures, and other related problems," according to the lawsuit filed Feb. 26.
Among the documents Legal Aid is seeking are associated with ProTech Solutions LLC, a contractor Workforce Services hired to run a system to allow people to apply for supplemental federal benefits tied to the covid-19 pandemic.
The judge said the agency wasn't negligent and it was "substantially justified" in not turning over the documents within three working days as the law required. She cited the volume of information as well as the volume of unemployment claims sparked by the global covid-19 pandemic.
She said the state's open-records law, enacted in 1967, was contemplated in an age without email and other modern technology that can easily amass huge amounts of data, a point a senior assistant attorney general representing workforce services, KatTina Guest, made in her closing arguments.
"Let's be clear," James said. "There could be no way someone could possibly give all that information -- identify it, printed, read, redacted and given to someone in three days. It's not possible.
"I think Ms. Guest makes a very valid point. This statute first started in the '60s. These were things you could most likely get together in three days. Even when it was updated -- the most recent time was 1991 -- before the day of emails. We were working on computers that may or may not have had a hard drive.
"Since that time, these request have become extremely large to the point that there's literally no way they could all be satisfied within three days as the statute talks about. That's where the common sense and balancing of interests analysis comes into play."
A Legal Aid representative welcomed the ruling but said testimony left more questions for the nonprofit to pursue on behalf of its clients.
"The judge ultimately gave us what we want: DWS has to produce documents regarding its relationship with Protech within 24 hours," Jaden Atkins, a staff attorney in Legal Aid's Springdale office, said in an email. " And it has to start producing documents regarding its use of algorithms this Friday and continue producing more every week until our request has been fulfilled."
Atkins, who testified at the four-hour hearing, said her organization wasn't satisfied with the testimony of Don Denton, the chief counsel for Workforce Service. He said that ProTech Solutions didn't make eligibility determinations for unemployment benefits that James found persuasive.
"This outside provider is not making eligibility determination as to whether someone gets benefits or not," the judge said in her ruling from the bench. "They are making eligibility determinations as to whether someone is a citizen or a non-bot or things of that nature. It doesn't sound like they are making any determinations on whether someone is eligible for benefits."
Atkins disagreed.
"DWS is relying on Protech's secret algorithm to make initial determinations about eligibility that are then later followed by DWS workers," she wrote in her email. "We don't know what measures DWS is taking to make sure the algorithm's recommendations are valid. We don't know whether DWS workers actually exercise any independent review or investigation.
"We'll be following up on what's happening here."
Testimony at Tuesday's hearing provided some insight into how much the agency struggled with the rise in unemployment claims sparked by the pandemic beginning almost one year ago and the fraud that has been associated with the program nationwide.
Much of the agency's work is paid by the federal government. The funding is apportioned based on the previous year's claims. With unemployment claims at almost historic lows in 2019, Workforce Services began 2020 with about 750 employees, according to Denton's testimony.
When the economic lockdowns came in an attempt to clamp down on the spread of the coronavirus, unemployment claims shot up, he said. Where before the pandemic the agency handled 50,000 claims per quarter, after the pandemic it was handling 400,000 claims, he said.
Some claims have to be adjudicated within the agency. Before the pandemic, it had 1,139 claims to adjudicate. In April, those claims shot up to 7,698, Denton testified.
The division's employment has risen to 900, but the agency still has vacant positions, he said.
Denton also provided some insight into the algorithm ProTech Solutions uses to vet claims. One element of the algorithm designed to protect against identify theft flags claims if more than four of them originate from the same IP address. IP is an acronym for Internet Protocol, the numbered label assigned to every device on a computer network that uses the Internet Protocol for communication.
He said as many as 100 claims originated from one IP address. The agency doesn't want to mention other elements of the algorithm publicly lest if give bad actors too much information to use against the agency's systems.