Monday, June 24, 2024

Not So Puzzling: A Predictable, Ongoing Failure to Follow the AFOIA

Let’s play a game.

It works like this: I’ll share part of an email that I received earlier today from a reader named Brian, but I’ll remove the office that he’s referring to, and we’ll see how many of you are able to guess the answer just from the other details?

Deal?  Deal.

A couple weeks ago, I sent a FOIA request to _________ for [a specific employee’s] requests for leave, requests for reimbursement and travel or mileage expenses from 1/1/12 to present. Picked it up from the office and noticed that they included a “leave summary” but none of the actual requests for leave that should have been submitted. The leave summary was just a spread sheet that showed pay dates and total hours of leave taken for each pay period without specifying what day or days it was taken on. I emailed _________ on October 1 to ask about the missing requests and explained that the summary wasn’t what I was looking for.

The full response was just “We have complied with your FOI request. There are no additional documents.” This seemed weird to me so I asked: “There are no requests for leave on file? How is leave entered in your system if an employee doesn’t fill out a request for leave?” No response.

Yesterday I sent a follow up: “This was a legitimate question. How is leave entered in the [office] system if there are no requests for leave filled out by employees?” Still no response.

If you’ve been paying any attention, I suspect most of you guessed that it was the Secretary of State’s Office, and you probably reached that conclusion even before you finished the first paragraph of the email.  Congratulations on being right.  Your prize is continued frustration with that office’s failure to follow the law.  (By the way, the specific employee was AJ Kelly.)

I also suspect that a lot of you had a reaction similar to mine, which was “what the hell?  How do you not have requests for leave?”  Because that is a normal question to ask when presented with something that fails the smell test this badly.

The answer, as it turns out, is that Alex Reed was being disingenuous and ignoring the requirement in the AFOIA that a request need only be “be sufficiently specific to enable the custodian to locate the records with reasonable effort.”1  So, for example, where a state office uses an online time-management system, into which employees directly enter their requests for leave, subject to supervisor approval, someone seeking requests for leave under the AFOIA would be entitled to records from that online system if the system could generate detailed reports.

Oh, hey, look at that!

Click to embiggen.

The time-management system used by the Secretary of State’s Office does, in fact, allow one to print “a detailed account of leave hours entered for payroll,” which includes the day(s) requested and, where applicable, the reason for the request.  That being the case, there was no valid reason why Reed did not provide these Timesheet Detail printouts to Brian in fulfillment of the AFOIA request.  Again, under the AFOIA, a request does not have to use the specific terminology that an office uses; it only has to be clear enough that the custodian of records would know what the requester was seeking.

Why would Reed go this route?  I can’t say for sure, but, based on Reed’s actions in the face of other recent AFOIA requests–from missing fulfillment deadlines without so much as a word to the requesting party to improperly redacting contracts that he has no business redacting–the answer appears to be that the Secretary of State wants to get sued again, most likely so that they can re-litigate the issue of hiring outside counsel.2

That would make sense from a self-preservation standpoint, since the specter of removal from office based on his established violation of Ark. Code Ann. § 25-16-702 continues to theoretically hang over Mark Martin’s head.3  Such a strategy is not without risk, however; Ark. Code Ann.  § 25-19-104 criminalizes negligent failure to comply with the AFOIA.  While the Pulaski County Prosecutor’s Office has long been loath to prosecute seemingly negligent AFOIA violations, an ongoing effort by a specific state office to bait Arkansans into suing that office seems like it could quickly reach a point where the prosecutor has no choice but to act.  At least in theory.

  1. Ark. Code. Ann. § 25-19-105(a)(2)(C)

  2. That they wouldn’t get to re-litigate this issue, for a variety of reasons, apparently has not dawned on anyone over there.

  3. As an aside, and at the risk of repeating myself, if you reference Ark. Code Ann. § 25-16-711 in defense of Martin, you’ve immediately established yourself as ignorant of the law and the procedural posture of this case, and you are without any meaningful insight into the issue.

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