For the second time this year, a court has found that Arkansas State Police has violated the state Freedom of Information Act in the way the agency releases crash reports.
A June lawsuit by attorney Brad Hendricks of Little Rock and his law firm accused the agency of illegally slowing its release of the reports.
The Hendricks firm had been acquiring the reports for years through the Freedom of Information law. It generally requires public records to be released as soon as possible but within three days of their request.
Police officials blamed the slowdown, which Hendricks employees noticed in May, on the effort it takes to comply with a new state law that requires information that identifies children to be removed from public reports.
The crash reports now have to be examined to determine whether the child-redaction law applies before the reports can be released to the public, police officials said. The redaction process means that releasing the reports takes longer than it used to, they stated in court.
The attorney general's office, representing the police, argued that the agency is not bound by time constraints established by the open-records law.
State police don't dispute that the reports are public records but argued that the state's Transportation Code, not the Freedom of Information law, governs how much time the police can take to make them public.
The code says authorities have a "reasonable time" to release the reports; lawyers for the state police argued that there's no legal definition of what "reasonable time" means.
But Circuit Judge Mary McGowan ruled Tuesday that the Freedom of Information law does control the timing of the reports' release. McGowan took testimony and heard the sides argue the case four weeks ago.
To determine that the "vague and general" Transportation Code was the controlling law for releasing reports would leave the definition of "reasonable time" solely up to police, the judge wrote.
"Therefore, this court concludes that FOIA, being much more specific as to the amount of time state agencies have to disclose certain records, i.e. three business days, controls [release times]," she wrote, using an acronym to refer to the Freedom of Information Act.
"The court finds that the defendants are in violation of the Arkansas Freedom of Information Act and orders the defendants to provide accident reports to the plaintiffs after redacting all the information which is exempt from the Freedom of Information Act."
In her decision siding with the Hendricks firm, McGowan pointed to the last Freedom of Information lawsuit the state police lost involving the reports.
In April, the Arkansas Supreme Court, in a 5-2 decision, rebuffed police arguments that personal identifying information on the reports could not legally be released to the public.
Police officials had said that information must be withheld because it was derived from a federal driver database that federal lawmakers had declared off-limits to the public since 1994.
The high court found that police were wrong to classify the reports as "motor vehicle records" subject to the congressionally imposed secrecy law.
McGowan's decision cited the findings of Justice Karen Baker, who wrote that it was "evident" crash reports fall under the open-records law.
That lawsuit was brought last year by another Little Rock law firm, one operated by brothers Daniel and Keith Wren.
Pulaski County Circuit Judge Chip Welch sided with the brothers that the crash report information should be released. The attorney general's office appealed the decision to the state Supreme Court.
Asked whether the state attorneys would appeal McGowan's decision, a spokesman for Attorney General Leslie Rutledge said the lawyers needed to study the three-page ruling before deciding how to proceed.
Hendricks firm attorney Tre Kitchens credited the work of co-counsel Caroline Lewis for crafting the legal arguments Kitchens presented to McGowan last month.
"We believe that the judge followed the law and expected nothing less," Kitchens said. "We will continue to seek to enforce the rights granted by the [Freedom of Information Act] for all the people of Arkansas."
Not all of McGowan's ruling favored the Hendricks firm. The judge rejected the attorneys' request to be compensated for the time and expense of having to sue state police to enforce the Freedom of Information Act.
The sovereign immunity established by the Arkansas Constitution and the Freedom of Information Act, Arkansas Code 25-19-107, bars plaintiffs from collecting any such payment when suing a state agency, she wrote.
A provision in the open-records law states that "the court shall not assess reasonable attorney's fees or other litigation expenses reasonably incurred by a plaintiff against the State of Arkansas or a department, agency, or institution of the state."
The law does allow the lawyers to petition the Arkansas Claims Commission for those fees and litigation expenses.
Metro on 08/19/2016