NWA editorial: Compelling interests

Appointment rekindles public interest in 2000 firing

Is Leslie Rutledge being a good attorney general, or a good soldier for the Republican Party and its new governor, Asa Hutchinson?

Either way, she's providing cover for Boyce Hamlet, Hutchinson's appointee to director of enforcement for the Arkansas Alcoholic Beverage Control Division.

What’s the point?

Arkansas Attorney General Leslie Rutledge botched an interpretation of the state’s open records law, a decision that helps prevent scrutiny of an appointment decision made by Gov. Asa Hutchinson.

A Little Rock blogger who has been critical of Hamlet and the agency he was appointed to sought public records that were used as the basis for Hamlet's firing as an Arkansas State Police recruit back in 2000. State police officials prepared to release the records with some redactions because they are "employee evaluation or job performance records" from 15 years ago that formed the basis for the decision to terminate his employment. Then Hamlet objected.

Under Arkansas law, an objection like that triggers a request for an advisory opinion from the attorney general. Since the Arkansas Freedom of Information Act was passed under Republican Gov. Winthrop Rockefeller, attorneys general have served a critical role in preserving the Legislature's intent that "electors shall be advised of the performance of public officials and the decisions that are reached in public activity and in making public policy." The Arkansas Supreme Court has decided an untold number of Freedom of Information cases with a goal to "narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy."

So what about Rutledge? She concluded the internal affairs investigation and whatever other material that explain the 2000 state police firing of Asa Hutchinson's 2015 appointee to a law enforcement position should not be released to the public.

The reason? "The public does not have a compelling public interest in these documents," she wrote.

Rutledge found that the low-ranking nature of Hamlet's position with the state police makes documents about his firing less compelling. Further, the fact it's been 15 years affects the decision as does her evaluation of the nature of whatever led to Hamlet's firing. "(G)iven the nature of the infraction reflected in these records and the low-level ranking of the subject at the time of the infraction, I believe that, to the extent there ever was a compelling interest, that interest has significantly degraded over time to be less than compelling now."

Rutledge's logic is solid, had someone requested Hamlet's records two or three years ago. But in 2015, he's been selected by the governor for a lead position in a powerful state agency. She may view the nature of his infraction as minor, but it was enough to get him fired by Arkansas State Police. Isn't that significant now that he's in a role of far greater responsibility?

Additionally, the evaluation of compelling public interest cannot be thoroughly considered on the basis of time's passage. Being a gubernatorial appointee to a state agency reinvigorates the public's interest and should, to a reasonable person, reactivate the public nature of those employee evaluation and job performance records.

But is Rutledge's decision only about Hamlet?

Let's not forget that here in 2015, it's not just the performance of Hamlet that the public should be capable of evaluating through public records. Indeed, Hamlet's performance is the lesser issue. Hamlet's background does, however, provide information about the job performance of the current governor. Hutchison chose to appoint Hamlet to the Alcoholic Beverage Control law enforcement post. Hamlet's history in state government and in other public positions is extraordinarily critical to evaluating exactly what kind of judgment Hutchinson is using in filling positions of public service.

So, is Rutledge being a good attorney general or providing cover for her party's governor? The public will have to evaluate that in spite of whatever "self-protective instincts of the government bureaucracy" may be at play.

But this kind of political appointment is exactly what the authors of the Arkansas Freedom of Information Act envisioned when they created limited access to personnel records that would normally be shielded from public view.

Rutledge made the wrong call.

Commentary on 09/04/2015

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