“Even the politicians have learned – but, as usual, the politicians are much slower than the people they want to lead.”

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I don’t know what it is about Secretary of State Mark Martin (and the horde of retread Republicans who work for him) that constantly brings Hunter S. Thompson to mind.  My guess is that it has to do with the good doctor’s hatred of the shady and illegal dealings of Richard Nixon and other politicians.  Nevertheless, the last few days have brought to mind Thompson’s quip that “Politics is the art of controlling your environment.”

For a good politician, the control is subtle and effective.  For political hacks who have little business being in a position to affect the lives of anyone, the control generally takes the form of recalcitrance, obtuseness, and a general disregard for pesky things like laws and rules.
Which brings me back to Martin.  A little over a week ago, Secretary Martin stated:

My office, our Executive team, and our employees remain committed to following the requirements of the Freedom of Information Act. Governor Rockefeller instituted the FOIA for good reason, and I hope we never forget the legacy he left us. The office continues to re-examine all of our policies and procedures, and to update policies and procedures on an ongoing basis.

If Martin were being honest — if he really was “committed to following the requirements” of the FOIA — then he might want to start by instructing his staff to actually following the requirements of the FOIA.  Yet, despite his trite lip-service to some atavistic commitment, the stark reality is that the Secretary of State’s office is knowingly attempting to over-bill people who request records from their office under the FOIA.  There is no other way to explain their charging a flat 25 cents/page.

When I questioned this charge and requested a detailed invoice pursuant to A.C.A. 25-19-105(d)(3)(B), Deputy Secretary of State Alice Stewart informed me that the charge was levied per “office policy.”  I received a woefully inadequate invoice as well; rather than answer my question as to how she arrived at the 25 cents/page fee, the invoice merely stated “256 copies @ 25 cents/copy.” 

“Office policy” may sound fine and dandy and pseudo-official, but, as I pointed out to the Secretary’s office, the Attorney General has made clear on more than one occasion that the costs allowed under the FOIA, no matter which public agency was filling the request, “cannot exceed the actual costs of reproduction.” Additionally, “any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.”  (As a point of reference, I received well over 1000 pages from the House of Representatives for 6 cents/page. But, then, Buddy Johnson is a great guy who wasn’t deliberately trying to thwart the FOIA.)

Most specifically, however, the Attorney General said, when asked specifically whether an entity could charge a 25 cents/page flat rate under the FOIA:

Question 6 – Is there anything in current state law that allows a city to charge individuals $0.25 per page for copies related to FOI requests without verifying that $0.25 per page is the actual cost of copies for that city?

As discussed above, a city can only charge $0.25 per page for copies of records provided in response to a request made under the FOIA if that amount is the actual cost to the city of making the copies. A.C.A. § 25-19-105(d)(3). As also discussed, the city must in addition provide an itemized breakdown of the charges. Id. As indicated in response to Question 2 above, I interpret these requirements as mandating that the city be prepared to verify its actual costs.

Anyway, because the Secretary’s “office policy” of 25 cents/page does not reflect the actual cost of production as far as I could tell — Ms. Stewart even specified that the policy did not necessarily reflect anything related to the costs — I again questioned the $64.00 charge for 256 pages.  I also pointed out that the invoice she’d supplied was not sufficient.

Ms. Stewart’s response?  That this policy “is certainly not unreasonable” because, under A.C.A. 21-6-202, they could charge “80 cents and $1.00 for certain copies.”

I looked up the statute she’d referenced. It (predictably) had nothing to do with the FOIA and, instead, pertained only to records and other written files required to be recorded in the Secretary of State’s office (i.e. articles of incorporation, UCC1s, etc.).  It is a statute regarding what the Secretary of State may charge to make copies in its capacity as Secretary of State, rather than as a state agency responding to the FOIA.  So it was inapplicable to copies of documents requested under the FOIA, especially where the requested documents were not documents that would be filed by the public in that office.

Much more importantly, because their office was not charging the listed statutory amounts, which provided no wiggle room as to amounts, and because they were not even claiming that the “office policy” of 25 cents/page was made pursuant to 21-6-202, the existence of that statute was absolutely meaningless in this discussion.  It is not important whether Ms. Stewart or anyone in that office feels that the fee “is certainly not unreasonable;” the relevant question is SOLELY whether the “office policy,” in the absence of any statutory provision that would allow them to implement such a policy, comports with the terms of the FOIA.

It does not.

I informed Ms. Stewart of all of this, and I apologized for being such a stickler for the law.  Heck, despite the fact that the FOIA expressly allows an agency to provide copies at no charge if the release is in the public interest and the primary purpose of the request is non-commercial, both of which conditions are arguably met here, I wasn’t even asking for that courtesy. I have no problem with paying substantiated, actual costs. As I told Ms. Stewart, I merely take issue with any assertion that an “office policy” of 25 cents/page is correct when I have been charged only 6 cents/page by a different office.

Because it seemed as if we’d reached an impasse on this issue, I emailed Ms. Stewart along with Secretary Martin and Doug Matayo, recapping the legal issues and proposing a number of alternative courses of action that we could take to resolve the questions. First, if the Secretary preferred to get an advisory opinion from the Attorney General on this specific matter pursuant to A.C.A. 25-19-105(c)(3)(C), I said that I would gladly wait for such an opinion to be issued before picking up my documents.

If they did not wish an advisory opinion, I again requested an invoice charging a fee that complied with the express language of the FOIA, with this invoice clearly delineating which part of the charged amount comes from the “medium of reproduction,” which part comes “supplies,” etc.  So, basically, what I was entitled to in the first place, I guess.

Finally, as a sort of reset button on the whole discussion for now, as a third alternative, I offered to pore through the documents they’d gathered, extract only the ones that I would actually need, and pay 25 cents/page for those. (Honestly, I feel like this third option was going above and beyond on my part, considering they would still be charging me an improper price for each document; I was only asking to be allowed to pull out superfluous materials so I wasn’t being charged an improper amount for those as well.)

This email was sent Wednesday during my lunch break.  I did not receive a response.

Yesterday, I again followed up with the Secretary’s office during lunch.  I emailed Ms. Stewart as well as Secretary Martin and Doug Matayo, writing:

Ms. Stewart,

After I did not receive a response to my final email yesterday, I contacted the Arkansas Press Association to discuss the “office policy” you cited.  I have attached the reply from the APA to the bottom of this email.  As you may know, the APA is responsible for putting out a biannual publication explaining the FOIA to the public, and they offer legal resources to their members regarding FOIA issues.  It is their position that your office is only allowed to charge the actual, verified cost of furnishing the documents, and that there is no statute that authorizes a higher charge for the Secretary of State’s office.  They cited language from the Attorney General that supports this conclusion.

Furthermore, I have confirmation that certain media outlets have not been charged the 25 cents/page fee for some FOIA requests.

Based on all of this, I must ask whether it remains the position of the Secretary of State’s Office that I must pay 25 cents/page to receive my documents and that I must do so without receiving a detailed invoice that lists the actual cost to your office of providing those copies?

Again, unshockingly I suppose, I did not receive a reply.

At this point, despite my requests for a detailed accounting of the copy costs and for a legal per-page charge (both reasonable requests, in my opinion), I have received neither.  Despite my willingness to overpay for documents that I needed if I could simply not pay for the ones I did not, I have not been taken up on that offer.  Despite my continued contact of Stewart, Martin, and Matayo, I have not received even the common courtesy of a brief yes-or-no response to my question yesterday.  And despite the fact that, under a follow-up request that I made on Tuesday, I am owed documents by the office today at the latest, I have not been informed that they are ready for my pickup, regardless of the cost per page.

Politics may very well be the art of controlling your environment.  That control ceases to be political and becomes, instead, illegal, when an office blatantly and repeatedly violates a law simply because they think they can.  Their radio silence is frustrating, but it is also highly telling.  Martin claims that his office is committed to following the FOIA.  He also took an oath of office to uphold the Constitution and laws of this state.  At this point, I think we can safely assume that both statements were false.  The only thing Martin is committed to is releasing as little information as he can; the only thing he is willing to uphold is his continued assumption that he is somehow above the law.

Whether it’s hubris, greed, or rampant dishonesty that makes the Secretary of State’s office think they can and will get away with this, I cannot say.

What I can say is that any assumption on their part that I am just going to go away quietly if they don’t respond can only stem from good, old fashioned abject stupidity.  And to end on a final note from Thompson:

In a closed society where everybody’s guilty, the only crime is getting caught. In a world of thieves, the only final sin is stupidity.