In all my years of using the Arkansas Freedom of Information Act, police departments and sheriffs’ offices have consistently been the worst about (a) thinking they are experts on the AFOIA while (b) actually not being right about their interpretation of the AFOIA, which (c) leads to far more AFOIA litigation than should be necessary.
Today’s example of this phenomenon? The Little Rock Police Department, who, according to the Arkansas Blog, issued a new AFOIA-related directive today:
Starting today’s date there will be a charge for anyone who files a Freedom of Information (FOI) request with the Little Rock Police department and the documents requested require a CD or disk to be generated. The fee will be $3.00 per disk. This will include 911 calls or radio traffic, video footage from patrol vehicles (MVR) and surveillance footage. This also will include when any large amount of documents (such as a case file) are requested. The CD will still be at the desk officer and the fee will be paid at the records window just to the right of the front desk.
Cool. That means it’s time for another round of America’s favorite game, “Count the Ways this Can Violate the AFOIA!”
First, the flat $3 charge is gonna be a problem. The AFOIA only allows for an entity to charge a requestor for the actual cost of reproduction. In this context, that means that the LRPD can only charge a person for the actual cost of the CD used (and has to be able to justify that cost if asked). A quick search shows Walmart with 100-pack CD-Rs for $17.50, which is about 18 cents each. Office Depot has 100-pack CD-Rs for $30.00, or 30 cents each. I can think of no scenario where LRPD would actually be paying $3 per CD in 2018. If they are, that’s probably something we need to address, because that would suggest an insane level of mismanagement in their supply and purchasing departments.
Second, the AFOIA allows a person to request records in any format in which they are readily available or readily convertible using existing hardware and software. If I make a request for hundreds of documents and want those documents emailed to me, rather than placed on a CD, I can do that. Even if it takes 30 separate emails for them to send the documents, I still have that option. Normally, I wouldn’t use that option, but if they are going to impose an improper $3/disc cost on getting the documents that way, a person certainly could opt for the email route, and LRPD would have to comply.
Third, if I want to examine records–which is allowable under the AFOIA–I can do that and then provide my own thumb drive for someone to copy whatever records I want to. The LRPD does not get to unilaterally decide that certain audio/video records can only be provided on a CD. This would be true whether they were charging for the CD or not.
Finally, but related to points 2 and 3, CDs aren’t exactly cutting edge technology in 2018. The desktop computer that I am typing this post on does not have a CD drive at all. My laptop, which dates from mid-2014, does not have a CD drive. The desktop computer I had prior to this one did not have a CD drive. (All of the computers I mentioned have USB ports, however.) The LRPD does not get to specify one type of storage media for delivery of public records regardless, but they certainly don’t get to specify a storage medium that is become less useful and more outdated with every new computer that is released.
There is, of course, an easier way to handle these requests, and–oddly enough–it is one that the Fort Smith Police Department has been using in response to large AFOIA requests for a few years now: cloud storage.[footnote]I HATE that I have to speak well of the FSPD’s handling of AFOIA requests.[/footnote] A person makes a request and, after the documents have been redacted (if necessary) and scanned, they are placed in a cloud-storage folder from which the person can download them. The requestor is then emailed a link to the folder. After a specific amount of time, the documents in the folder can be deleted, so there is no issue of using up all of the available storage space. I highly suggest LRPD look into a similar idea.
Even if they don’t go with the cloud-storage route, however, I definitely encourage them to back off of this $3/CD policy. It is not going to go well for them–or for the City–when they are inevitably sued over the inherent AFOIA violations in the new policy.