IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION. No. CV MARK MARTIN, SECRETARY OF THE STATE OF ARKANSAS

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1 ELECTRONICALLY FILED 2013-Jul-01 10:26:54 60CV IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS DIVISION MATTHEW CAMPBELL PLAINTIFF No. CV MARK MARTIN, SECRETARY OF THE STATE OF ARKANSAS DEFENDANT FOIA COMPLAINT AND REQUEST FOR HEARING 1. This is an appeal from a denial of rights under the Arkansas Freedom of Information Act ( AFOIA ), Arkansas Code Annotated sections through PARTIES, JURISDICTION, AND VENUE 2. Plaintiff Matthew Campbell is an adult citizen of the State of Arkansas, and he brings this appeal as a matter of right under Arkansas Code Annotated section , as he requested specific public records from the Secretary of State s Office, and Defendant actually and constructively denied a portion of the Plaintiff s request, entitling the Plaintiff to a hearing in this court. Ark. Code Ann (a); see Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000). 3. Defendant Mark Martin is the Secretary of the State of Arkansas, a state agency, tasked with providing, upon proper request, access to public records as defined in Arkansas Code Annotated section (5)(a), subject to any exclusions in Arkansas Code Annotated section (b) and/or limitations in Arkansas Code Annotated section (c). See Ark. Code Ann (d)(1) to -105(d)(2).

2 4. A suit against a state official in his official capacity is not a suit against that person but, rather, a suit against that official s office. See George v. Ark. Dep t of Human Servs., 88 Ark. App. 135, 195 S.W.3d 399 (2004). An elected constitutional officer, in his official capacity, is the properly named party in an appeal from the denial of rights under the AFOIA. See generally Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). 5. It is the standing practice of the Secretary of State s Office to route all AFOIA requests through the Director of Public Affairs, a position currently held by Roland Alexander Reed, making Reed a custodian of records as defined by Arkansas Code Annotated section (1)(A). 6. This court has subject-matter jurisdiction pursuant to Arkansas Code Annotated section (a). 7. Venue lies in Pulaski County because the Secretary of State s Office is a state agency, Plaintiff resides in Pulaski County, and the events leading to this lawsuit occurred entirely within Pulaski County. See Ark. Code Ann (a). FACTUAL BACKGROUND 8. Based on information contained in copies of s that Plaintiff received in fulfillment of a previous AFOIA request, Plaintiff filed an AFOIA request (attached as Exhibit 1 hereto) on June 10, 2013, at 12:44 p.m., in which he requested the following attachments: a. From a March 27, from Denise Hoggard to AJ Kelly and Martha Adcock, an attachment entitled draft brief.docx b. From a February 19, from Denise Hoggard to AJ Kelly and Martha Adcock, an attachment entitled notice of appeal.docx

3 c. From a February 8, from Denise Hoggard to AJ Kelly and Martha Adcock, an attachment entitled objections pursuant to Fed. R. Civ. P. 26a(3)(c).docx d. From a May 31, from Karen Turner to AJ Kelly, an attachment entitled pltfs initial disclosures.pdf e. From a November 2, from Karen Turner to AJ Kelly, an attachment entitled Third Draft - BIS of MSJ doc f. From an October 28, from Denise Hoggard to Darrell Hedden, attachments entitled Brice declaration draft.docx and Huggs declaration draft.docx g. From an October 28, from Denise Hoggard to Darrell Hedden, attachments entitled October 10_2012 Darrell Hedden_BUNDLE.pdf and Darrell Hedden Exhibits 1-20.pdf 9. Plaintiff s request noted that the attachments are all available in electronic form and that he was requesting that those attachments be delivered in that format without alteration. In support of this valid request, Plaintiff included a direct citation and quotation of Arkansas Code Annotated section (d)(2)(B) of the AFOIA, which provides, A citizen may request a copy of a public record in any medium in which the record is readily available. 10. In an dated June 13, 2013, sent at 3:18 p.m., Reed, in his official capacity as custodian of records for the Secretary of State s Office, Reed stated, I had to go out of town today unexpectedly, and wont [sic] be back in time today to complete your requedt [sic]. I will finish it first thing in the am. 11. Plaintiff responded to Reed in less than an hour, by , objecting to any further delay in fulfillment of Plaintiff s June 10, 2013 request:

4 Because the law requires a response within three business days and does not require that any specific person within a state agency be the person who fills the FOIA request, because these attachments do not require editing or printing, and because this request can be filled by simply saving the listed attachments to a computer and then attaching them to one or more s to me, I m going to need you to go ahead and have someone else in the Secretary of State s Office complete the request and send the materials before the close of business today. 12. In that same , Plaintiff noted that he had already given Reed more time than was actually required under the AFOIA, stating: Technically, the law only gives you three business days if the requested records are in storage or are otherwise not immediately available. These records do not fall under that rule, but common practice has been to allow three business days for all requests. I am fine with acquiescing to common practice, but I am not willing to extend it to another day. This is a correct statement of the law under Arkansas Code Annotated section (e). 13. Shortly after Plaintiff s , he received a reply from Reed s account, in which Plaintiff was informed that paper copy [sic] of s had printed and kept, apparently implying that the requested electronic versions of some of the requested attachments were no longer available. Attached to this were the requested.pdf files listed in subparagraph 8(d) and 8(g), supra. The from Reed also cited, without explanation, Arkansas Code Annotated sections (b) and -105(d)(2)(c). 14. Within forty-five (45) minutes, Plaintiff again replied to Reed via , inquiring whether Reed s official stance was that.pdf attachments had been kept, while.doc and.docx attachments had not; requesting a copy of the Secretary of State s -retention policy; and asserting that Reed s broad citation to Arkansas Code Annotated section (b) was insufficient to inform Plaintiff of Reed s purported legal basis for withholding the requested files.

5 15. Some hours later, Reed replied and told Plaintiff, We will get back to you soon. At this point, even allowing for the conventional three days to fulfill a valid AFOIA request, the Secretary of State s Office had failed to timely answer Plaintiff s request. 16. Despite Reed s claim that the Secretary of State s Office would get back to [Plaintiff] soon, neither Reed, nor anyone else from the Office, contacted Plaintiff on Friday, June 14, On Monday, June 17, 2013, a full week after Plaintiff s request for the attachments in electronic format, Reed ed Plaintiff the following: You requested electronic copies. You stated I do NOT require an additional copy of the s listed herein, only an electronic copy, and as they are all available in electronic form and are requested to be delivered in that format without alteration. If you would like me to print them and redact them, I would be happy to. Also, I will get you the retention policy as soon as I get it. 18. Less than an hour later, Plaintiff replied to Reed, specifically noting that Reed s previous statement had been disingenuous: You are correct; I said that I didn t need new copies of the s. That has nothing to do, however, with a request for the attachments to the s. Nor does my statement somehow justify why the previous from your account said that some attachments were not retained, not that they were retained but could not be provided electronically. If the requested Word documents were saved, that file would be the electronic copy that I requested, just like with the.pdfs. As for printing and redacting, I am still unclear as to what would need to be redacted out of a document sent to your office from the law firm and, more specifically, exactly what basis you are claiming for the redaction. The Secretary s office is not exempt under [Ark. Code Ann ](b)(7), documents from the firm to the Secretary s office are not personnel records under (b)(12), and any addresses contained in those documents is beyond the scope of (b)(13). If the documents do not exist in electronic format, there is nothing to send; if they do, then they are subject to disclosure in that format. If the records do contain something that you feel needs to be redacted, and if you cite to the specific authority for the redaction, then feel free to redact it in the electronic format and send the redacted version of that electronic file. This is literally no different than

6 redacting a paper copy and providing the redacted version. In either case, your actions are exactly the same, and you are not creating a new file or record within the meaning of [Ark. Code Ann. ] (d)(2)(C). Thus, any reference to that as an excuse for this ongoing failure to fulfill the request is nonsensical at best. It has now been a week since the request was filed. The request remains unfulfilled, and the reasons for the failure continue to change in a manner that suggests a knowing breach of the legal duty imposed by the FOIA. 19. Rather than provide a meaningful response to Plaintiff s contentions or provide the requested attachments in electronic format, Reed sent the following near the close of business on June 17: I do not wish to make this more difficult than it is. I have paper copies of attachments. I will even provide them to you for no charge. Keep in mind that these are draft documents, and were not the ones filed. The ones filed can be accessed electronically at I will give them to the elections library, and you can pick them up. I have been trying to get you what you wanted, and feel I have in a timely manner. 20. Plaintiff would have been justified in lodging an appeal in this court under Arkansas Code Annotated section at this point, but he chose to again explain to Reed that Plaintiff was absolutely entitled to the requested attachments in the requested medium. To that end, Plaintiff ed Reed on the morning of Tuesday, June 18, 2013, stating in pertinent part: You say you do not wish to make this difficult, yet that is exactly what you are doing by dragging your feet and trying not to give me records to which I am legally entitled. I specifically did not request paper copies of the files, so your offer of paper copies does not fulfill the request and is not legally sufficient. 21. Plaintiff did not receive a response or any further communications from Reed or anyone at the Secretary of State s Office until roughly 11:30 a.m. on June 24, 2013, over two full weeks from when Plaintiff sent his original request. On June 24, Reed ed Plaintiff a friendly

7 reminder that you have some documents available to you in the elections library for pickup, and Reed offered to mail those documents to Plaintiff. 22. Plaintiff responded to Reed in short order, yet again pointing out that Reed s attempts to dictate the medium in which Plaintiff could receive information under the AFOIA were insufficient to satisfy the law: As you are certainly aware, the documents in the elections library were neither requested by me in that format, nor are they sufficient to fulfill my previous FOIA request. 23. In that same reply, Plaintiff informed Reed: We are now two weeks past the date that I requested those documents in electronic form. Unless I receive the documents in the requested format by 5pm today (June 24), I will take your most recent as official notice that the Secretary of State s Office is refusing to comply with a valid FOIA request, and I will pursue appropriate remedies. 24. Plaintiff s June 24 was sufficient to make clear that he did not consider printed copies of the attachments to be in fulfillment of the June 10 AFOIA request, and it should have served to inform Defendant that Plaintiff would not consider receipt of those same printed documents via U.S. Mail to be acceptable under the AFOIA. 25. Rather than reply to Plaintiff s June 24 , Reed spent $9.09 in taxpayer funds to mail two printed copies one by first-class mail and one by certified mail, return-receipt requested of two of the requested attachments to Plaintiff s home on June The first-class documents were received at Plaintiff s home on the afternoon of June 25, and Plaintiff retrieved the certified-mail copies from the Post Office on June The envelopes that Defendant mailed to Plaintiff consisted only of printed copies of the attachments referenced in subparagraph 8(c) and 8(e), supra; a letter that again cited and quoted the entirety of Arkansas Code Annotated section (b), without specifying

8 which provision Defendant was claiming to rely upon, as well as a bland citation to section (d)(2)(C), which is inapplicable to Plaintiff s request; and an unofficial copy of the previously requested -retention policy. 28. As of the date of this filing, Plaintiff has still not received the attachments listed in subparagraphs 8(a), 8(b), 8(c), 8(e), and 8(f), in the proper medium. CLAIM ONE BAD-FAITH REFUSAL TO PROPERLY PROVIDE PUBLIC RECORDS IN THE REQUESTED MEDIUM 29. Plaintiff restates and realleges the facts and allegations contained in the preceding paragraphs as if fully set out herein. 30. Arkansas courts liberally construe the Arkansas Freedom of Information Act to accomplish its broad and laudable purpose that public business be performed in an open and public manner, and courts broadly construe the AFOIA in favor of disclosure. See Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). 31. Under the AFOIA, public records expressly include electronic or computer-based information. See Ark. Code Ann (5)(A). 32. The AFOIA expressly permits a citizen to request a copy of a public record in any medium in which the record is readily available. Ark. Code Ann (d)(2)(B). 33. As used in the AFOIA, medium means the physical form or material on which records and information may be stored or represented. Ark. Code Ann (3). 34. As with all statutes, in interpreting the meaning of the AFOIA, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. See Thomas v. Hall, 2012 Ark Courts construe the AFOIA so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute, if possible. See id.

9 36. For the request... in any medium language of the AFOIA to have any meaning, it must contain a concomitant right that the requestor receive the records in the requested medium, and refusing to provide the records in the requested medium would be violative of this right. 37. Plaintiff clearly and explicitly requested that the electronic copies attachments referenced in paragraph 8, supra, be delivered in that format without alteration, and this request was sufficiently specific to enable the custodian to locate the records with reasonable effort. See Daugherty v. Jacksonville Police Dep t, 2012 Ark Additionally, Plaintiff provided Defendant with citations to the applicable portions of the AFOIA that allow for release of the information in this format. 39. Since Plaintiff s June 10, 2013 request, Defendant has engaged in deceitful, dilatory behavior in an effort to prevent Plaintiff from obtaining the.doc and.docx files that he requested, to wit: a. Reed s first June 13, attempted to force Plaintiff to wait an additional business day before any records would be provided, despite Reed s having already had three business days in which to respond, simply because Defendant is apparently unwilling to let anyone other than Reed handle AFOIA requests; b. Reed s second June 13, provided Plaintiff with the requested.pdf files, but opaquely suggested that the s containing the relevant.doc and.docx files had been deleted; c. Reed s second June 13, also cited, without explanation, Arkansas Code Annotated sections (b) and -105(d)(2)(c), apparently as an excuse for not providing the requested attachments, despite the fact that neither citation was relevant to Plaintiff s request;

10 d. When questioned by Plaintiff as to why some s were kept and some were not, at which time Plaintiff also requested a copy of the Office s -retention policy, Reed stated in his third June 13, , We will get back to you soon, and then did not make further contact with Plaintiff until June 17, e. In his first June 17, , Reed disingenuously implied that electronic copies of the attachments had not been provided because Plaintiff had stated that he did not require paper copies of the s; f. This statement is both illogical, inasmuch as Plaintiff s lack of need for paper copies of the s is irrelevant to a request for an electronic copy of an attachment to those s, and demonstrative of bad faith, as it began Reed s repeated efforts to force Plaintiff to take the documents in a medium of Reed s choosing, rather than in the medium that Plaintiff requested; g. After Plaintiff explained to Reed that Reed s previous was based on irrelevant information, that paper copies were neither requested nor desired by Plaintiff, and that Plaintiff was absolutely entitled to the electronic copies, Reed sent his second June 17, , in which he repeated that he would provide paper copies of the attachments to Plaintiff; h. Despite Plaintiff s informing Reed on the morning of June 18, 2013, that paper copies were neither requested nor legally sufficient to fulfill the AFOIA request, Reed failed to respond to Plaintiff for six (6) days, until sending Plaintiff a a friendly reminder on June 24, 2013, that the paper copies were still available for pickup; i. In response to Plaintiff s prompt June 24, 2013 reply that the paper copies were still neither sufficient nor desired, Reed chose to mail two copies of unrequested

11 documents to Plaintiff s home address, at a cost of $9.09 to the taxpayers of Arkansas. 40. Reed s own statement in his first June 17, to Plaintiff that he would be happy to print copies of the attachments and provide them to Plaintiff undermines his June 13, 2013 suggestion that electronic copies of the attachments no longer existed. 41. Reed s multiple subsequent attempts to provide Plaintiff with printed, paper copies of the requested attachments belie his earlier suggestion in the second June 13, that certain provisions of the AFOIA exempted those files from disclosure. 42. There is no provision of the AFOIA that allows a custodian of records to require a citizen to accept public records in a medium of the custodian s choosing. See generally Daugherty, 2012 Ark. 264 (holding that the AFOIA does not give the custodian of records the power to pick and choose which requests it may comply with, nor may a custodian disclose only the records that he deems relevant). 43. At no point in the twenty-one (21) days since Plaintiff filed his request has Defendant provided any legal justification for the ongoing refusal to comply with the AFOIA, nor has Defendant cited a specific provision of Arkansas Code Annotated section (b) that would exempt the requested records, despite his ongoing reference to that subsection as a whole. 44. To the extent Defendant relied, and continues to rely, upon an assertion that some of the material contained in the requested records was subject to redaction, the AFOIA is unambiguous that [n]o request to... obtain copies of public records shall be denied on the ground that information exempt from disclosure is commingled with nonexempt information. Ark. Code Ann (f)(1); see also Ark. Code Ann (f)(2)

12 ( Any reasonably segregable portion of a record shall be provided after deletion of the exempt information ). 45. To the extent that Defendant asserts that Plaintiff is requesting that Defendant compile a new record not currently in existence, in violation of Arkansas Code Annotated section (d)(2)(C), such an assertion is wholly without merit; even if the requested records required redaction, redaction of electronically stored files is clearly contemplated by the AFOIA. See Ark. Code Ann (f)(3). 46. The Arkansas Supreme Court has held that the test for whether a failure to provide public records under the AFOIA was done in bad faith is whether the Defendant was substantially justified in withholding the records. Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). 47. Defendant is not only not substantially justified, but has in fact provided no justification whatsoever, beyond implying that Defendant could determine the medium in which Plaintiff received the records. 48. Even assuming that Defendant was somehow unaware at the time of Plaintiff s June 10, 2013 request that the.doc and.docx attachments were subject to disclosure of the AFOIA, Plaintiff s repeated citation and explanation of the basic tenets of the AFOIA certainly gave Defendant actual or constructive knowledge of this fact. 49. Further, with actual or constructive knowledge that the requested records were subject to disclosure in that format, Defendant could not have been substantially justified in believing that he could fulfill the mandates of the AFOIA by mailing a portion of the requested records to Plaintiff in the incorrect medium, especially without offering any legal justification for not providing the remaining records.

13 50. Defendant s behavior when presented with Plaintiff s request evinces a knowing, deliberate attempt to avoid complying with the requirements of the AFOIA, undermining any suggestion that Defendant was substantially justified in refusing to disclose the records. CLAIM TWO NEGLIGENT FAILURE TO COMPLY WITH CERTAIN PROVISIONS OF THE ARKANSAS FREEDOM OF INFORMATION ACT 51. Plaintiff restates and realleges the facts and allegations contained in the preceding paragraphs as if fully set out herein. 52. The AFOIA defines public records in part as records that are required by law to be kept. See Ark. Code Ann (5)(A). 53. Under Arkansas Code Annotated section , the Department of Finance and Administration (DFA) promulgates rules and guidelines governing the retention and management of public records commonly found in most state agencies, including, but not limited to, electronic records. Ark. Code Ann (b)(1). 54. The record-retention rules promulgated by DFA apply to the Secretary of State s Office. See Ark. Code Ann (2)(A) ( agency, as used in Ark. Code Ann (b)(1), means each board, commission, department, officer, or other authority of the government of the State of Arkansas, whether or not within, or subject to review by, another agency, except the General Assembly, the courts, and Governor ). Therefore, the instant case is distinguishable from Daugherty, 2012 Ark. 264, S.W.3d (2012). See Ark. Code Ann (a) (DFA records-retention rules do not apply to city, county, or local governmental entities). 55. Under DFA s rules:

14 a. Documents regarding the status of litigation involving an agency or its officials, employees, or departments must be kept for five years after the final disposition of the litigation. See GS 06006, Arkansas General Records Retention Schedule, etention_schedule.pdf (last visited June 30, 2013). b. Case files regarding any charge of discrimination filed against the agency, including all records of the charge, must be kept for three years or until final disposition of the charge or action, whichever is greater. See id at GS c. Substantive correspondence that that has significant administrative value and pertains to the implementation or modification of an agency s administrative operations, rules, policies and/or procedures, must be kept for four years. See id at GS Importantly, the DFA records-retention rule listed in subparagraph 50(c), supra, specifies, Retention of correspondence is decided by the CONTENT not the medium of the record, and An attachment or enclosure within a correspondence record should be evaluated separately for its respective retention period. Id (emphasis in original). 57. The attachments that Plaintiff requested in electronic form were documents from an outside law firm, hired by Defendant, to defend Defendant against two charges of discrimination and wrongful termination; even assuming, arguendo, that the attachments somehow do not amount to litigation files or case files regarding a discrimination claim, they would certainly be substantive records subject to the retention as described above and subject to disclosure under the AFOIA as public records required by law to be kept. See Ark. Code Ann (5)(A).

15 58. Defendant continues to suggest that certain requested attachments were deleted pursuant to office policy, and Defendant has produced an , dated April 5, 2011, from Mr. Cecil Davis, stating that all staff are informed that they should clear their Inbox and Sent Items of messages that are more than one month old. 59. Nothing in Arkansas Code Annotated section (b)(1) allows a state agency s internal policy to trump DFA s record-retention rules. 60. To the extent that Defendant admits that he knowingly had employees delete the requested attachments after thirty days, without regard to the content of the attachments, Defendant is openly admitting that he breached the duty owed to Plaintiff to maintain records in accord with DFA s rules; Defendant s breach is both the legal and proximate cause of Plaintiff s inability to obtain public records to which he was legally entitled under Arkansas Code Annotated section PRAYER FOR RELIEF WHEREFORE, based on the foregoing, Plaintiff prays that this Court will: 61. Find that Defendant, either in bad faith or negligently, failed to comply with the AFOIA with respect to Plaintiff s June 10, 2013 request. 62. Order that Defendant fulfill Plaintiff s request as required by state law. 63. Find that Defendant may not rely on an -retention policy that allows for the destruction of records that are otherwise required to be kept by DFA s records-retention schedule. 64. Fix and assess a day the petition is to be heard within seven (7) days of the date of this application, and hear and determine the case as required by Arkansas Code Annotated section (b).

16 65. Order any relief that this Court deems proper. Respectfully submitted, Pinnacle Law Firm, PLLC 212 Center St., 11 th Floor Little Rock, AR (501) By: Matthew D. Campbell, ABA # Attorney for Plaintiff CERTIFICATE OF SERVICE If the Secretary of State s Office is not provided electronic service by the Clerk of this Court upon filing of this complain, I, Matthew D. Campbell, herby certify that a true and correct copy of the foregoing will be mailed via U.S. Mail, postage prepaid, return-receipt request, to the Secretary of State s Office on this 1st day of July, 2013, or as of the date of filing by the Clerk, whichever is later. Matthew D. Campbell

17 MIME-Version: 1.0 Sender: Received: by with HTTP; Mon, 10 Jun :44: (PDT) Date: Mon, 10 Jun :44: Delivered-To: X-Google-Sender-Auth: N1m-CPMnplmCHt17b3l2_F6LnVE Message-ID: Subject: FOIA Follow-Up From: Matt Campbell To: Alex Reed Alex, I picked up the requested documents this morning. Thank you for compiling them. Based on the information contained in those documents, I have additional requests. However, these should not require any copying on your part, as they are all available in electronic form and are requested to be delivered in that format without alteration. Pursuant to Arkansas Code Annotated section (d)(2)(b), "A citizen may request a copy of a public record in any medium in which the record is readily available." The fact that the documents in this request are listed as attachments on various s that you provided establishes that each is available in the requested format. Please note, I do NOT require an additional copy of the s listed herein, only an electronic copy of the attachments underlined in the list below. The description of the is provided only for your reference and ease of locating the attachments. The list is not chronological, but is presented in the same order as the documents I received today. 1. March 27, from Denise Hoggard to AJ Kelly and Martha Adcock: draft brief.docx 2. February 19, from Denise Hoggard to AJ Kelly and Martha Adcock: notice of appeal.docx 3. February 8, from Denise Hoggard to AJ Kelly and Martha Adcock: objections pursuant to Fed. R. Civ. P. 26a(3)(c).docx

18 4. May 31, from Karen Turner to AJ Kelly: pltfs initial disclosures.pdf 5. November 2, from Karen Turner to AJ Kelly: Third Draft BIS of MSJ doc 6. October 28, from Denise Hoggard to Darrell Hedden: Brice declaration draft.docx & Huggs declaration draft.docx 7. October 28, from Denise Hoggard to Darrell Hedden: October 10_2012 Darrell Hedden_BUNDLE.pdf & Darrell Hedden Exhibits 1-20.pdf Thanks, Matt