Supreme Court remains consistent in support of open government


The Arkansas Supreme Court’s ruling last week on records related to the use of force by a police officer varied from the norm in two respects but remains true to the high court’s enforcement of the Arkansas Freedom of Information Act, which started with the first challenge in 1968.

The latest ruling came in the case of Little Rock Police Chief Stuart Thomas versus Keith Hall, an attorney for a Little Rock man who had been involved in an altercation with police Oct. 29.

Unlike most FOIA cases, this one was brought by a non-media citizen. Down through the years most of the disputes under the law have involved a public agency or official and a news organization.

The news media of Arkansas were instrumental in getting the law passed in 1967, and ever since then we’ve been active in enforcing it and defending against attempts to weaken the FOIA. That’s because open meetings and open records are critical to covering government, and that’s a big part of what we do.

But no one should ever forget that the FOIA is a citizens’ law. Without it you can secretly be taxed, jailed, censured, annexed, rezoned or worse, then left with little recourse. Public officials can be corrupt without fear of being discovered.

We know these things can happen because they did prior to passage of this law.

Hall filed this lawsuit in behalf of Chris Erwin after an incident outside a Little Rock restaurant resulting in the use of force by Little Rock police Lt. David Hudson against Erwin. The latter was subsequently charged with three misdemeanor offenses.

In the course of preparing Erwin’s defense, Hall asked the LRPD for copies of Hudson’s routine written reports on his use of force in this case and three others. The use of FOIA by lawyers in their legal discovery processes is increasing, perhaps because it can be a quicker way to get information. Some lawyers and others frown on it, but public records are public for everyone, no matter the reason for a request.

However, Chief Thomas denied Hall’s request, contending that the reports were exempt from disclosure because they were part of Hudson’s “employee evaluation or job performance records.” That’s quite a stretch considering that Hudson produced the reports himself and they were related to incidents that occurred in public and involved other citizens. The reports were also required as a matter of policy by the LRPD.

Circuit Judge Wendell Griffen conducted a hearing and ruled that Hudson’s use-of-force reports were public records involving the performance of an official duty, as defined under the FOIA. He ordered their release, but the City of Little Rock appealed.

The case is also unusual in that most FOIA disputes involving a law enforcement agency stem from one specific exemption under the law — “undisclosed investigations by law enforcement agencies of suspected criminal activities.” The agencies cite that exemption routinely in denying details, or sometimes even general information, about a crime or other public incident they investigate.

Most often there is good reason for the exemption. Sometimes, though, it’s just a ruse to prevent disclosure of information embarrassing to the law enforcement agency or someone else.

In Thomas v. Hall there was no indication that Hudson did anything wrong in any of the incidents for which he employed force, and the reports apparently were not used in an investigation.

The LRPD first argued that disclosing the reports would be an invasion of the officer’s privacy, but that point was dropped on appeal in favor of the employee evaluation argument.

That failed to win any support among the Supreme Court justices. In an opinion written by Justice Robert Brown the court said: “In conjunction with these rules of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. … Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure.”

Brown noted that under the law “all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records.”

Therefore, the question boiled down to whether these records constituted employee evaluation or job performance, as defined under a 1987 amendment to the FOIA. The fact that these reports were prepared by the employee, not by a supervisor, undermines that argument.

The court concluded that the reports are prepared prior to an evaluation or investigation, not as part of either.

Therefore, the high court made another in a long line of important statements in behalf of open government in Arkansas.

Our police officers must have the option of using force in the performance of their duties, and the use of force can be deadly and can have far-reaching implications. That’s why the public has an interest in how well they perform their duties at such times, so records related to the use of force must be open.

• • •

Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net