Little Rock City Attorney Tom Carpenter during a city board meeting Tuesday said he wants to seek an attorney general's opinion regarding potential Arkansas Freedom of Information Act disclosures related to a Dec. 31 police shooting involving the police chief.
"I think that y'all are at risk, personally and as the city, because we are withholding things that ... seem to be clearly subject to release" under the Freedom of Information Act while relying on an exemption about ongoing criminal investigations, Carpenter said.
Additional discussion at the agenda meeting concerned whether Carpenter needed to seek formal authorization from board members in public in order to ask for the attorney general's opinion, as well as whether he should have raised the issue with them at all prior to requesting the opinion.
In an email to the Arkansas Democrat-Gazette and others Tuesday evening, Carpenter wrote, "As a result of a discussion at the [Board of Directors] Agenda meeting today, I am sending the request for an Attorney General opinion on."
Carpenter said he might submit the opinion request Tuesday evening but "more probably" it would be sent today.
He included an earlier message he sent Friday to a series of officials inquiring about possibly seeking an opinion from the state.
While on patrol New Year's Eve, Police Chief Keith Humphrey fired his gun at an armed suspect, apparently missing her, according to the authorities' account of the incident.
The suspect, who was later arrested, wounded another individual during the shooting, which took place outside an Asher Avenue gas station.
Humphrey has been placed on administrative leave while the shooting is investigated.
Arkansas State Police agents are examining his use of force so prosecutors can determine whether Humphrey complied with the law. The incident is also the subject of an internal Police Department investigation.
Starting Jan. 1, the Democrat-Gazette has requested records that include audiovisual material from the shooting, correspondence of city officials on the subject and training records of the police chief related to firearms or the use of deadly force.
As of Tuesday evening, the city had declined to release any of the requested records.
Carpenter told the Democrat-Gazette via email on Monday that with Arkansas State Police and the Pulaski County prosecuting attorney's office handling the investigation, "We have been notified that many requests for information pursuant to the Arkansas Freedom of Information Act (AFOIA) should be deemed exempt at this time because the criminal investigation is not complete."
He cited Rule 3.8 of the Arkansas Rules of Professional Conduct and its requirement that prosecutors refrain from making certain extrajudicial comments.
"The City has decided at this time to honor the request of the criminal investigators," Carpenter wrote. Questions about the release of information under the Freedom of Information Act should be directed to the prosecutor, he wrote.
In his email Friday to a long list of officials -- they included the mayor, members of the city board, the chief deputy prosecutor and an Arkansas State Police spokesman -- Carpenter wrote that while he was honoring the request of the State Police and the prosecuting attorney regarding the records requests, he believed it to be "incumbent upon the City to seek an opinion from the Attorney General as to certain of these requests for records."
He restated the prosecuting attorney's position regarding the Rules of Professional Conduct and said the "deep concern" about Rule 3.8 "must be carefully considered."
"Unfortunately," Carpenter added, "the initial, seminal, and foundational Arkansas AFOIA case ... stated that in the open meetings context, a concern about a lawyer's ethical obligations did not trump the AFOIA."
During the meeting Tuesday, Carpenter clashed with at-large City Director Antwan Phillips, an attorney at the firm Wright, Lindsey & Jennings, over procedure.
In his Jan. 7 email, Carpenter had asked recipients, "Please 'REPLY ALL' and let me have your thoughts. Also, those with the City please 'REPLY ALL' as to authority to send such a request."
Phillips indicated that he had no problem with the city attorney making the request to the attorney general's office for an opinion, but argued board members needed to make their views on the issue known during a public meeting instead of being asked for their input via email.
"I just think that if we can object, then that's a vote, and if it's a vote, it needs to be at a board meeting," Phillips said, and cited a request he made to the city manager to put the issue on an upcoming meeting agenda.
"I had a few clients that used to want to take votes on my advice. Most of them are doing life without parole now," Carpenter responded.
Later, Carpenter suggested he had an ethical obligation to members of the city board, as his clients, not to take certain steps without their approval. He said he did not see it as a vote "when you're talking about strategy to protect you from a crime."
City Manager Bruce Moore at one point during the meeting called it a "moot point," arguing that Carpenter could make the request to the attorney general and did not have to seek approval.