Illegally denied record requests, Little Rock says in court

In 2nd case, city’s police found in violation of law

Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

Little Rock illegally withheld public records, many of them involving Mayor Frank Scott Jr.'s failed LITFest project, from crusading attorney Matt Campbell, the Blue Hog Report blogger, city lawyers admitted in open court on Tuesday at what was supposed to be a hearing on Campbell's open-records lawsuit against the city.

"The city is admitting liability," Deputy City Attorney Alan Jones told Pulaski County Circuit Judge Chip Welch, stating that Little Rock is committed to providing Campbell everything he's entitled to.

Earlier Tuesday, Pulaski County Circuit Court Judge Tim Fox ruled Little Rock police violated the Arkansas Freedom of Information Act at least three times in the department's dealings with critic Russ Racop, responding to the lawsuit the Snarky Media Report blogger filed to force compliance with the open-records law.

The concession is potentially expensive since the Arkansas Freedom of Information Act allows Campbell to seek reimbursement for his time and expenses, and he said he's already put at least 12 hours into trying to get the city to turn over documents he's been seeking over the past seven weeks. Campbell will have to petition the judge for approval for any compensation, which the city can challenge.

Campbell said he usually gets paid $250 to $300 per hour but there's still more work to do reviewing materials the city has begun to turn over to ensure that he's getting what he asked for. Campbell's made 13 requests and just one one of the city disclosures is 20,000 pages.

Most of Campbell's requests have to do with his blog's exploration of LITFest, a program envisioned by the mayor as an annual showcase for live music and panel discussions. The festival was supposed to be held this month but the project fell apart after revelations that a former Scott aide was involved with the firm Think Rubix hired to produce LITFest. City Manager Bruce Moore canceled the company's contract earlier this month, citing contract violations.

With the opposing sides appearing amicable at the six-minute hearing, the judge said he wanted to make sure that documents are timely produced, requiring that Little Rock turn over materials to Campbell at least every two days or Mayor Frank Scott Jr. will have to come to court, explain why the city isn't meeting deadlines and face potential contempt.

"I want to put a clock on this," the judge said. "If it doesn't get done, [the mayor] is where the buck stops."

The mayor, who is not a defendant in the suit, attended the proceeding. Jones told the judge the city has hired extra help to expedite Freedom of Information requests, and Campbell said the city has nearly complied with half of his open-record requests.

"They're seemingly working a lot [harder] -- almost nonstop," Campbell said after the hearing.

In the Racop proceeding, the judge left open the possibility he might rule against the department a fourth time, telling Racop and city lawyers he wanted to study on whether the blogger might be entitled to information about an individual officer's disciplinary history that Racop had asked for.

Fox opened the hour-long hearing by dismissing Scott from Racop's lawsuit, stating that only the department's designated records custodian could be sued for an open-records violation. That records keeper for police is the police chief, in this case, interim Chief Wayne Bewley.

The judge also offered his own assessment of the city's compliance with the open-records law, based on his personal experience and years as a judge presiding over Freedom of Information Act litigation against Little Rock.

"Just generally speaking, Little Rock does a terrible job," Fox said while noting the law is required to be interpreted in a manner that has been criticized as being "overly broad" and onerous.

The lawsuit by Racop, a frequent critic of the mayor and law enforcement, cited three times when he had requested materials under the Freedom of Information law and was either partially or completely rebuffed with police sometimes failing to timely respond to his requests.

Racop said he asked for the documentation about police use of force and related internal investigations in a March 2020 email, telling the judge that police did not even acknowledge receiving his email until 2021.

"That's pretty clearly a violation of the [law]," Fox said.

Racop told the judge that when he did get documents from the city -- nine DVDs' worth -- in October 2021, police did not provide all of what he'd asked for, holding back investigations that did not lead to an officer's suspension or firing, which city lawyers claimed were exempt from public disclosure. The judge rejected that argument, finding the refusal to turn over all the materials as the second violation. He said the city has three days to provide the materials to Racop.

The third violation found by the judge was that the police had taken too long to respond to Racop's June request for some police video recordings. But Fox said Racop was not entitled to all of them, siding with Jones, the deputy city attorney who argued on behalf of the police that the department could not be required to turn them all over because they contain recordings of at least one undercover officer.

Still to be decided by the judge is whether Racop is entitled to a disciplinary history of every police officer. Department officials refused, saying that to give the blogger what he wants, they would have to create a new record to comply with his request. The open-records law specifically states agencies don't have to make new records to satisfy Freedom of Information requests.

The judge agreed that's a legitimate denial but he wanted to study the matter further before closing the door entirely, saying he wanted to see whether at least some of the materials Racop was seeking could be made public. He told the sides he would decide that issue soon.

An appeal is expected but it cannot commence until the judge's rulings are committed to writing.

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