Correction: According to an email released by Lt. Gov. Mark Darr’s office, a Darr representative consulted with Assistant Attorney General Dennis Hansen on Oct. 18 about whether Darr was required to disclose his personal cellphone number in response to an open-records request by administration critic Matt Campbell, who operates the Blue Hog blog. This article should have stated that Darr did not seek a formal opinion from the attorney general’s office about whether he should disclose the number.
Lt. Gov. Mark Darr is not entitled to redact his personal cellphone number from state billing records, a critic of the Springdale Republican’s administration claims in a Freedom of Information Act lawsuit filed Monday.
The Arkansas open-records law does not allow Darr, 40, to assert a privacy privilege to withhold the number, attorney Matt Campbell - who operates the Democratic-leaning Blue Hog Report blog - argues in the seven-page lawsuit. Campbell is asking Pulaski County Circuit Judge Mary McGowan to order Darr to release the information and declare that Darr acted in bad faith by withholding thenumber.
Campbell has asked for a hearing within a week.
Darr dropped out of the race for the U.S. 4th Congressional District in August, about a week after announcing his intention to seek the seat, after Campbell questioned how Darr used some campaign funds. The Arkansas Ethics Commission is reviewing the spending.
According to Campbell’s lawsuit, he was not looking for Darr’s personal cellphone number and did not know it might be included in Darr’s response to Campbell’s Oct. 17 open-records request. Campbell had asked for the past six months of “billing and usage records for all phones, both land-line and cellular” assigned to Darr’soffice, according to the lawsuit.
Darr’s communications director, Amber Poole, reported four days later that the lieutenant governor’s office does not have any state-issued cellphones and notified Campbell that she was withholding Darr’s number at the lieutenant governor’s request. Campbell objected, suggesting that Darr seek an opinion about the redaction decision - an option Darr declined, according to the suit.
The attorney general’s office confirmed Monday that Darr did not seek its lawyers’ advice.
After two days of Poole and Campbell emailing back and forth about whether the lieutenant governor’s response satisfied the open-records law, Darr responded personally to Campbell, court filings show.
Darr stated that because the Freedom of Information Act allows courts to use a “balancing test” in some situations involving telephone numbers, he is entitled to the same test to decide whether his personal number should be released.
“Courts apply a balancing test that weighs the public’s interest in getting the phone number against the individual’s privacy interest. The public interest is measured by the extent to which disclosure of the information sought would shed light on how the government body in question is doing its job or otherwise let citizens know what the government bodyis doing,” Darr’s message to Campbell states.
“It is not apparent how the disclosure of a private cell phone number would accomplish this objective. In contrast, it is quite apparent that a statewide officeholder has a non-trivial privacy interest in not having everyone in the state have access to or knowledge of his personal cell phone number, especially because such information could be used for purposes of nuisance or harassment.”
Darr’s reasoning for withholding his phone number has no legal basis, the lawsuit states.
“Defendant’s rationale is based on a misunderstanding of the [Freedom of Information] law and amisapplication of the personal-records balancing test,” the lawsuit states. “Defendant has no legal authority to redact his cell phone number from the requested records because the requested records are not ‘personnel records’ within the meaning of the [law]. Defendant has no legitimate expectation of privacy in the official business of his office, and there is no general ‘privacy’ exemption in the [law] that would allow defendant to redact otherwise disclosable records.”
If the Legislature had wanted Darr to be able to shield his personal number from disclosure, Campbell argues in the filing, lawmakers would have given him thesame near-total exemption from disclosure that they granted nonelected government employees earlier this year, citing the March passage of Act 411 of 2013.
The measure, which amends Arkansas Code 25-19-105, sponsored by state Rep. Debra Hobbs, R-Rogers, and state Sen. Robert Thompson, D-Paragould, expanded privacy protections for those employees, making all of their personal contact information exempt from public disclosure.
Campbell is already suing Arkansas Secretary of State Mark Martin under the Freedom of Information Act, claiming that Martin’s refusal to provide him materials that Campbell requested in an electronic format violates the open-records law. The suit is on hold while Martin appeals a court order that forces him to rely on the the attorney general for representation in the case instead of using outside counsel Martin had hired.
Northwest Arkansas, Pages 7 on 10/29/2013