FAYETTEVILLE -- A circuit court judge on Wednesday ruled a former University of Arkansas employee's request for five years' of email from two former co-workers failed to satisfy a provision within the Arkansas Freedom of Information Act such requests be specific enough for records to be found with "reasonable effort."
At the end of a one-day, non-jury trial, Washington County Circuit Judge Doug Martin didn't remark on an issue raised about whether costs associated with hiring extra personnel to prepare records for public disclosure could be passed on to the person making the request, instead finding Wade Cash's request was "not valid."
"I think that's all I'm going to say. I think that's all you're asking me to decide," Martin said.
Cash filed a lawsuit in June seeking email to and from the accounts of former co-workers at the Arkansas Water Resources Center, part of the UA System Division of Agriculture.
Cash, who was fired from his job as a technician with the center, claimed in his lawsuit the university failed to comply with the Freedom of Information Act. When Cash asked for "all incoming and outgoing email correspondence," he was instead provided with email specifically concerning him, according to court documents.
Later, a letter to Cash from an associate general counsel for the UA System stated there would be a cost of $6,757 to pay for additional personnel to review and copy the records Cash sought.
Court documents filed by the university cited Arkansas Code Annotated 25-19-105, which states in part: "The request shall be sufficiently specific to enable the custodian to locate the records with reasonable effort."
Martin also remarked on the importance of the "reasonable effort" language, though he noted there were few related court cases from the past to help him make his judgment.
"I'm not going to try to draw a bright line reading of the law," Martin said, referring to testimony about the weeks or months it would take the workers to review tens of thousands of email for the time period specified in the request. The effect on university operations, also a part of the two former co-workers' testimony, "was certainly relevant," Martin said.
By law, most student records as well as many personnel records, for example, may not be disclosed publicly, so email must be reviewed before their release, said Scott Varady, an associate general counsel with the UA System.
Cash's former co-workers, Brian Haggard, director of the center, and, Leslie Bartsch Massey, now an engineering instructor at the University of Arkansas, said in court Wednesday about the time it would take them to review their email.
Haggard said he had about 16,000 email "threads," and it would take about "60 plus" eight-hour days to sort through the threads, with many threads including multiple email. He said he based his estimate on the time it took him to search his email for the records turned over to Cash.
Bartsch Massey said it would take about 33 and one-third days for her to review email, taking her away from duties with engineering students at UA.
Both said that, at the time, they didn't use their university email accounts except to have messages automatically forwarded to their Gmail accounts, thus mixing work and personal messages. Rick Woods, the attorney representing Cash, in court said it wasn't his client's fault the mixing of work and personal messages made for more records to be reviewed.
Woods also argued the workers could hand over their email to an attorney representing UA for review. Both workers said they would be willing to give their Gmail password to a university representative in order to comply with the law.
Varady spent much of the trial arguing Cash failed to narrow his request because he said Cash "was intransigent" despite being told repeatedly his request was too broad in scope.
As part of his arguments, Varady also said Cash's initial request in January 2013 was for correspondence "related to" university email addresses for the workers, and it took until July 2013 for the university to receive a clarification dropping the "related to" language and instead asking for incoming and outgoing mail from those addresses.
Cash took the stand first in the trial.
"I didn't realize this 'related to' qualifier was such a big deal," Cash said, saying even after a phone conversation with Varady he didn't understand the "related to" language in his email specifically was an issue.
David Curran, a deputy Arkansas attorney general, helped give a closing statement for UA's case, emphasizing the interest public agencies have in "operating efficiently."
Speaking after the trial, Cash said he was disappointed with the ruling. He said he didn't know if he would file a more narrow request or appeal the judge's decision.
During the trial, Varady told Martin the lawsuit was frivolous and "bad faith litigation," and "we are seeking our expenses in this matter."
Martin in his decision didn't remark on any expenses to be paid. After the trial, Varady said the university would need to have discussions about whether a motion would be filed to try to seek to recover expenses associated with the case.
NW News on 04/23/2015