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Arkansas justices hear arguments on granting newspaper access to texts on government phone

by Stephen Simpson | November 19, 2021 at 3:52 a.m.
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

A debate on where public interest ends and protection of privacy begins when it comes to the state Freedom of Information Act was the topic of oral arguments held Thursday before the Arkansas Supreme Court.

The case involves messages on a state-issued cellphone between then-Department of Information Systems Director Mark Myers and a vendor's representative.

The Arkansas Democrat-Gazette requested access to the messages under the public records law.

Maximillan Sprinkle, an attorney for Myers, and Erin Cassinelli, an attorney for the vendor representative who is identified as Jane Doe in this case, both argued that the newspaper and in turn the public don't have the right to all the personal and private messages between the former official and vendor's representative.

"Just because it is held by the government doesn't mean it's public record," Sprinkle said during oral arguments.

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

"It's really hard to see what is personal" and what is business, he said. "These two have been determined to be inexplicably intertwined."

Cassinelli said the court could easily tell the difference between messages that are of public interest and those that are personal.

"There are some very sexually explicit exchanges and personal exchanges in these messages," Cassinelli said.

Gaines disagreed.

"We are talking about multimillion-dollar contacts with a government contractor and that public interest outweighs the privacy interest," he said.

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. Myers' salary was $137,360 a year.

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, a reporter with 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 them.

Myers indicated his intent to contest the release of the BlackBerry Messenger messages.

Before the agency could release them, 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.

The circuit court allowed the Democrat-Gazette and Jane Doe to intervene and ordered the records not be disclosed until the circuit court had a chance to review the parties' arguments and the records.

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."

Cassinelli said the issue is how much information about her client is potentially being released in these records.

"I don't know how her phone number would have any public value. How her name would have any public value," she said. "The important issue is what Mark Myers did and her status as a vendor. To include her name is to open her to public ridicule for no public value and it flies in the face of the FOIA exemptions."

Sprinkle said he believes the court can determine which messages are purely private and ones that give context on business dealings.

"It can be done because a vast majority of the records are private," Sprinkle said.

Supreme Court Justice Rhonda Wood said some of the messages only make sense if the entire message chain is followed.

"Are we asking a judge to go through 2,700 messages to determine what is private and public?" Wood asked during oral arguments. "How do we set that as a standard?"

Cassinelli said their position is to simply request the court to strike the messages that aren't business related and don't need additional context.

The circuit court "really skipped the meat of its role," she said.

Gaines said his client's position is that the circuit court didn't err in finding that the records were public records subject to disclosure. He said both the former official and the vendor's representative waived the right to privacy since they knew they were communicating on a government-issued device.

Gaines said these messages help the public understand the nature of the allegations against Myers. He said this doesn't mean every personal message sent by government employees is open to the Freedom of Information Act, but this case in particular shows the personal relationship intersected with state business.

"It's a case by case basis," he said.

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