Freedom (of Information) Isn't Free: How Mark Martin's Office Is Willingly Violating the FOIA

After I wrote the last post about Secretary of State Mark Martin’s office having spent over $100,000.00 in legal fees to outside law firms, despite having several attorneys on staff, I received a couple of emails asking the same question: what is he getting for that money?
That’s a good question.  So I figured I would start with the most-costly firm on the list — Chisenhall, Nestrud & Julian — and take a peek behind the curtain.  (In case you were wondering, no, there is no attorney-client privilege between the firm and the SOS’s office in this scenario.)
Anyway, on June 2, I requested:

All client-engagement agreements or similar documents between Secretary of State Martin in his official capacity, or the Secretary of State’s office generally, and the law firm of Chisenhall, Nestrud and Julian, P.A., or any of its individual attorneys.
All written correspondence between the Secretary of State’s Office and Chisenhall, Nestrud and Julian, P.A., or any of its individual attorneys. This request encompasses letters, faxes, and emails between the parties, regardless of which party sent the correspondence.
All invoices payable from state funds received from Chisenhall, Nestrud and Julian, P.A., or any of its individual attorneys.

When I picked up the documents, I found that the bulk of the documents consisted of emails between A.J. Kelly/Martha Adcock (aka two of the lawyers on Martin’s staff) and Denise Hoggard of Chisenhall, Nestrud & Julian.  (Because, hey, when you’re paying hundreds of dollars and hour for outside legal help, you should totally have the outside lawyers run their work by the in-house lawyers that you didn’t trust to handle the case in the first place, right?)  The documents all pertained to defending Martin’s office against two claims of wrongful termination filed by former members of the Capitol Police, primarily a suit filed by Richard A. Burton, which is full of all sorts of blatant racism if you care to check it out.
Reviewing the emails, I noticed that several contained references to attachments.  On June 10, at 10:44am, I sent a follow-up, requesting these documents and requesting them specifically in their unaltered, electronic format:

1. March 27, 2013 email from Denise Hoggard to AJ Kelly and Martha Adcock: draft brief.docx
2. February 19, 2013 email from Denise Hoggard to AJ Kelly and Martha Adcock: notice of appeal.docx
3. February 8, 2013 email from Denise Hoggard to AJ Kelly and Martha Adcock: objections pursuant to Fed. R. Civ. P. 26a(3)(c).docx
4. May 31, 2012 email from Karen Turner to AJ Kelly: pltfs initial disclosures.pdf
5. November 2, 2012 email from Karen Turner to AJ Kelly: Third Draft – BIS of MSJ 11.02.12.doc
6. October 28, 2012 email from Denise Hoggard to Darrell Hedden: Brice declaration draft.docx & Huggs declaration draft.docx
7. October 28, 2012 email from Denise Hoggard to Darrell Hedden: October 10_2012 Darrell Hedden_BUNDLE.pdf & Darrell Hedden Exhibits 1-20.pdf

Despite the fact that this request could have been filled in very short order — after all, Alex knew precisely which email each attachment came from, and he didn’t have to print anything — I heard nothing until June 13, at 1:25pm, when Alex wrote:

Matt-
I had to go out of town today unexpectedly, and wont be back in time today to complete your requedt. I will finish it first thing in the am.
-Alex

Yeah…no. At this point, we were already past when the documents should have been delivered. I replied:

Alex,
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 emails 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.
-Matt
*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.

A little testy? Perhaps. But also, importantly, completely accurate. The law is the law is the law, and I don’t really give a tinker’s damn whether Mark Martin wants every FOIA request being filled by Alex Reed.
Shortly thereafter, I got a response from Alex. In that email, addressed “To Whom It May Concern,” were the three PDFs I’d requested, but none of the Word documents, along with this:

Paper copy of emails had been printed and kept. They were provided to you previously in response to your request, however some attachments were not retained.

Somewhat ridiculously, the email also contained a full quotation of the FOIA exemptions under Arkansas Code Annotated section 25-19-105(b) without any hint as to which of the seventeen subsections they were relying upon, and there was a reference to Arkansas Code Annotated section 25-19-105(d)(2)(C), which has nothing to do with anything here.
If you’re keeping score, you realize that my request still had not been fulfilled. So I replied.

Just so I’m clear, based on what you’ve sent, your position seems to be that pdfs were downloaded and kept, while, for some reason, .doc files were not? In that case, I’m going to need to see the SoS’s official policy on retention of records. Because this is not in storage or otherwise unavailable, I require it immediately.
In addition, your broad citation to 25-19-105(b) is completely unacceptable; you must specify the precise subsection on which you purport to withhold certain records. Because, I’ll be honest, nothing in that section appears applicable to the Secretary’s office. I requested documents sent to your office by outside counsel. If something in the documents was nondisclosable under the act, it could be redacted, but I trust you are smart enough to see that nothing in that section allows you to withhold the documents as a whole.Similarly, I trust you are smart enough to understand the remedy if you improperly fail to disclose requested information.
I question how you were able to fill my request mere hours after telling me that you’d be unable to do so. Disingenuous attempts to circumvent your responsibilities under the FOIA are harshly demonstrative of good faith.

The answer to that last question?

I was on the road all day. I had to call someone at the office to access my files, and get you the information you requested. We will get back to you soon.

Tangent: Giving someone else your state-computer login and email password? Not a great idea.
Anyway, as the sun set on June 13 (a Thursday), that’s where we stood. Silly me, with the time for filling the request having since passed and Alex’s assurances that they would “get back to [me] soon,” I kind of expected some sort of response on Friday. I didn’t get one.
(Also, spoiler alert, as of this writing on the evening of June 19, I still haven’t received that record-retention policy that he promised on June 13. Shocking, I know.)
On June 17, a full week since I’d made the request, Alex decided to turn the idiocy up a few notches and act like it was my fault that he’d failed to fill a valid FOIA request.

You requested electronic copies. You stated “I do NOT require an additional copy of the emails 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 email retention policy as soon as I get it.

I’m not a huge fan of having someone make a completely illogical argument and act like it somehow justifies his own failings. I guess I’m old fashioned like that.

You are correct; I said that I didn’t need new copies of the emails.
That has nothing to do, however, with a request for the attachments to the emails. Nor does my statement somehow justify why the previous email 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 [25-19-105](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 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 25-19-105(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.

Put yourself in Alex’s spot.  You’ve got the braintrust of A.J. Kelly and Co. telling you not to turn over the Word documents, despite the fact that you have someone making the request who knows the FOIA far better than anyone in the SOS office.  It’s a pretty untenable position to be in.  But you’ve got to do something.  You could (a) follow the law and turn over the documents, (b) not follow the law and effectively dare the requesting party to sue the office under A.C.A. section 25-19-107, or (c) do something like this:

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 http://www.pacer.gov/. 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.

Which is to say, you could offer someone the information, but not in the requested format, and pretend like you were being altruistic by providing the documents in the wrong format for free.
But here’s the thing: the SOS office has been sued twice for wrongful termination by people alleging racism in their terminations. While one can question the wisdom of a law firm sending draft documents in Word format instead of PDF — a tremendously stupid idea when your client is subject to FOIA — that’s exactly what happened here. And I want the Word documents in electronic form on the off chance that there is more information contained in those files than what actually prints on the page. I suspect that Alex (or one of his puppet masters) knows this, hence the foot-dragging. Unless you are hiding something, the continuing, blatant failure to turn over the documents makes no sense. So, yesterday morning, I responded:

Ignoring for a moment the puzzling question of why you are so reluctant to provide the Word documents, let’s walk through this step by step.

ACA 25-19-103(5)(A): “Public records” means . . . electronic or computer-based information . . . required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee[.] All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.
ACA 25-19-105(d)(2)(B): A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.

The Word docs are public records. I’m a citizen. I requested the public records in their original Word format, which is readily available.
Most importantly, nothing in the FOIA allows the custodian of records to determine in what format the requested records will be provided; they must be provided in the format requested by the citizen provided that format meets the criteria of ACA 25-19-105(d)(2)(B) and -105(d)(2)(C).
Under ACA 25-19-105(d)(3)(A)(ii), if you wish to charge me the actual cost of emailing those files to me, you may, though that will require a detailed breakdown of the cost under ACA 25-19-105(d)(3)(B).
As for whether this has been handled “in a timely manner,” I made my request on June 10 for very specific information in a very specific format. It is now June 18, and that request has still not be totally fulfilled.

That email was sent at 9:52am on Tuesday, June 18.
It is currently 9:15pm on Wednesday, June 19.  I’ve heard nothing else from the office, and I’ve not received the documents I requested nearly 10 days ago.
Again I ask you: knowing that the documents are absolutely disclosable under the FOIA, what earthly reason for not turning them over is there unless you are trying to hide something?  Because I sure can’t think of one.
UPDATE: Wait! I just thought of a possible explanation: what if they are trying to get sued over this so that they can generate more legal fees for outside counsel?
On second thought…nah.  They’re just hiding something.