The Arkansas Freedom of Information Act was front and center Wednesday in a federal court hearing called to determine if attorneys for a Cabot woman banned from public schools in the city will be allowed to access documents from the defendants by using the open-records law instead of going through the normal discovery process.
Melissa “Missy” Bosch was banned from entering Cabot Public Schools property after a recording of her talking about school shootings was posted on social media in June 2022.
According to a complaint filed in federal court July 25, 2022, Bosch claimed she attended a Moms for Liberty meeting at Crossroads Cafe in Cabot on June 9 to discuss school board candidates and other matters. Four days later, someone anonymously posted a 30-second audio clip to Facebook she said was taken out of context to make it sound like she was talking about shooting up a school when, she said, she was venting her frustration with a school librarian.
According to a Cabot Police Department incident report dated June 14, Bosch said, “If I had any mental issues they would all be plowed down with a gun by now.” The report said the leaked comment was not made in the context of a threat and Bosch was not charged in the incident.
The report said Cabot superintendent Tony Thurman told police that Bosch “has been very outspoken at school board meetings” and that “due to her conduct, he was concerned about the comment on the recording.” Although Bosch was cleared of any wrongdoing, she said in her original complaint and an amended complaint filed in September 2022 that a letter from Thurman told her she was barred from all Cabot School District property unless she gives 24-hour advance notice.
Bosch is represented by Robert Steinbuch of Little Rock and Chris Corbitt of Conway. Thurman and the Cabot School District are represented by Jay Bequette, Phillip Brick and Cody Kees of Little Rock. The city of Cabot is represented by Sara Monaghan of North Little Rock. Steinbuch and Corbitt attended the hearing by telephone, as did Brick and Monaghan.
On July 13, Brick filed a motion for a protective order to prevent Bosch and her attorneys from obtaining information through the Arkansas Freedom of Information Act, asking that U.S. District Judge Lee Rudofsky order that all discovery requests be submitted pursuant to the Federal Rules of Civil Procedure, claiming that Freedom of Information requests submitted on Bosch’s behalf “impermissibly seek to circumvent the Federal Rules of Civil Procedure and the jurisdiction of the Court.” According to a final scheduling order dated Jan. 30, the deadline for discovery to be completed was set at Sept. 8, with the order that all discovery requests and motions be filed sufficiently in advance of that date to allow for a timely response. According to the American Bar Association, discovery is the formal process of exchanging information between the parties about the witnesses and evidence that will be presented at trial.
In the motion for a protective order, Brick said many of the documents being sought through the Arkansas Freedom of Information Act “may be protected by the federal attorney-client privilege and/ or work-product doctrine, an exemption not afforded by the Arkansas Freedom of Information Act.” A legal question posed by Rudofsky was whether he has the authority to rule from the federal bench on a matter of the Arkansas Freedom of Information Act, especially considering that to make such a ruling have real meaning, it would have to be binding not only on the trial participants but on every citizen of the state. Otherwise, he said, there would be nothing to prevent any citizen of the state not involved in the proceeding from requesting the materials from the defendants through a Freedom of Information Act request and then handing the materials over to the plaintiffs.
“That strikes me as going pretty far in my inherent authority,” Rudofsky said.
Although Brick said he was sure that federal law would trump the state’s Freedom of Information Act in protecting attorney/client privilege and work-product doctrine, Rudofsky said he wasn’t so sure.
The judge said even if he has the authority to make such a ruling to be effective from the date a federal lawsuit is filed, he questioned whether that authority would be extended prior to such a filing.
“What if there’s a document that would be considered to be under attorney/ client privilege but that was made the day before the lawsuit was filed?” Rudofsky asked. “How can that stuff be covered under attorney/client privilege in the first place … given that it’s FOI-able? It strikes me that there’s no expectation of confidentiality because of the Arkansas FOIA law.” Brick maintained that the federal cause of action would place the matter under the umbrella of federal protections.
Steinbuch, a University of Arkansas at Little Rock law professor and co-author of the Arkansas Freedom of Information Handbook, argued that Rudofsky does not have the authority to make any ruling that would impact citizens’ ability to obtain information under the Arkansas Freedom of Information Act.
The Arkansas Freedom of Information Act, considered to be one of the most expansive in the country, currently requires government disclosure of information that may be subject to attorney/client privilege. The law is subject to revision currently being debated in a special session of the General Assembly.
Following the hearing, which lasted nearly two hours on Wednesday evening, Rudofsky said he would take the matter under advisement but did not say when he may rule on the matter.