IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ARKANSAS DISTRICT LAWRENCE A. WALKER PLAINTIFF v. CASE NO. STUART SOFFER, Chairman of Jefferson County Election Commission, in his Individual and official capacity; JEFFERSON COUNTY ELECTION BOARD; DEFENDANTS COMPLAINT Comes now Lawrence A. Walker, by and through his attorney Crystal J. Okoro, for his Complaint states: NATURE OF THE ACTION 1. This is an action brought pursuant to the Arkansas Freedom of Information Act of 1967 (FOIA), as amended, codified in Ark. Code. Ann. 25-19-101 et seq. PARTIES 2. Lawrence A. Walker is a citizen of the State of Arkansas and a resident of Pulaski County, Arkansas. 3. Stuart Soffer at all times relevant to this lawsuit served as the acting Chairman of the Jefferson County Election Board. 4. The Jefferson County Election Board District is a public body corporate incorporated under the laws of Arkansas and receives funding from the State
of Arkansas through State appropriations borne by the citizens of Arkansas. It is a member of the Arkansas County Elections Commission. JURISDICTION AND VENUE 5. Jurisdiction and Venue are appropriate in the Court pursuant to Ark. Code Ann. 25-19-107(a). FACTS 6. On March 29, 2016, Plaintiff sent a FOIA request via email to Mr. Soffer. This request was sent to votestu@yahoo.com which is the address listed on the State Board of Elections. (See Exhibit 5.) The FOIA request is attached here as Exhibit 1. 7. On April 1, 2016, Plaintiff sent the same FOIA request via email to asking for certain information. (Exhibit 2.) 8. On April 4, 2016 Mr. Soffer responded to the request made to the yahoo account, as attached in Exhibit 3. 9. Mr. Soffer, in his response, raised several defenses to Plaintiff s FOIA request. These included, inter alia, that Mr. Soffer was not a public employee or custody of records, therefore he does not have administrative control of nor do [I] possess any public records in my home. Mr. Soffer also took the postion that he was not required to retain copies of any communications or documents, and as a practice do not. (Exhibit 2.) 10. While Mr. Soffer admitted possession of certain emails, he claims they are communications with the staff attorney on an election issue or unresolved 2
complaints not releaseable to the public until investigations are complete and addressed in a public meeting. (Exhibit 2.) 11. Mr. Soffer referred the Plaintiff to the state board records custodian or, in the alternative, recommended that the Plaintiff acquire a copy of the minutes from the Jefferson County Clerk. (Exhibit 3.) 12. Mr. Soffer stated that he would be unable to respond to items 3 and 4 in your request because both are unclear. He also stated that, with regards to items 5 and 6 in your request, no e-mails exist. (Exhibit 3.) 13. Here, the FOIA items requested in the initial FOIA request pertained to Mr. Soffers correspondence in his official capacity with the State of Arkansas and Jefferson County. These are #3 and #4 in the initial FOIA request, respectfully. (Exhibit 1.) 14. While it is clear that not all emails sent from a public email address are subject to FOIA disclosure, this is a question of fact for the fact-finder. Pulaski County v. Ark. Dem-Gaz., Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). Without knowing what exists, Plaintiff simply cannot ascertain whether the materials would be subject to disclosure. This makes establishing the harm in this case difficult and/or impossible. 15. On April 1, 2016, Plaintiff contemporaneously sent an identical FOIA request to soffers@sbcglobal.net. This email address was obtained through local residents, since Mr. Walker had not received a response to his March 29, 2016 FOIA request. 3
16. On April 5, Mr. Soffer responded to the identical FOIA request sent to his sbcglobal.net email account by referring Plaintiff to the response from the yahoo.com account. He further requested that the Plaintiff correspond via tradition mail communication. (Exhibit 4.) 17. Items sent between a Governor and a State Employee, even from a private email, have been held to be subject to FOIA disclosure. Bradford v. Director, 83 Ark. App. 332, 128 S.W.3d 20 (2003) 18. At no time did the Defendants claim that the materials were exempt under Arkansas Code Ann. 25-19-105(b) or Arkansas Code Ann. 25-19- 105(c)(3)(A). The only possible exemption cited by Mr. Soffer is a reference to Arkansas Code Ann. 25-19-103(5)(A). 19. Further, the Defendant did not claim that any of the records were in active use, storage, or matters of personnel records. 20. At the time of the filing of this Complaint, the Defendants have not yet provided the public records to the Plaintiff, in violation of the Arkansas Freedom of Information Act. GROUNDS FOR RELIEF 21. Plaintiff incorporates Paragraphs 1-20 as fully setout herein. 22. Defendants violated the Arkansas FOIA by not producing the requested documents within three (3) working days or even a reasonable amount of time. 4
23. Defendants have also not asserted that any of the requested documents are statutory exceptions to the Arkansas FOIA, aside from the reference to the definitions sections of the Arkansas FOIA law. This particular section has been thoroughly litigated and is such on an ongoing basis and does not, by itself, demonstrate a good faith reliance on a legal opinion. 24. Pursuant to the Arkansas FOIA, this Court should order the Defendants to produce the requested documents and should award the Plaintiff all costs and attorney s fees pursuant to Ark. Code. Ann. 25-19-107 (d)(1). WHEREFORE, Plaintiff prays that this Court find that the Defendants violated the Arkansas Freedom of Information Act, Order the Defendant to provide the public records to the Plaintiff, award the Plaintiff costs and fees for having to file this action, and for all other relief to which he may be entitled. Respectfully submitted, CRYSTAL J. OKORO (2012077) P.O. Box 1118 North Little Rock, AR 72115-1118 5