Tuesday, May 21, 2024

Mayflower Police Planning AFOIA Violations According to New Policy

That feeling when a municipal police department turns AFOIA violations into an actual written policy.

I try. I really do. I can’t tell you the number of times that an attorney representing a city or county or school district or any number of other public entities has called or emailed me to ask a question about Arkansas Freedom of Information Act compliance. Every single time, I have willingly and quickly responded. I never bill anyone for this; I am happy to do it for free if it means that everyone is on the same page as far as the AFOIA goes.

Likewise, I have written more than once on this blog about AFOIA issues. For instance, here’s a post from 2013 about how then-Sec. of State Mark Martin’s office was violating the AFOIA by refusing to provide electronic copies of email attachments. Here’s a post from 2015 about Attorney General Leslie Rutledge’s incorrect interpretation of “in active use or storage” in the AFOIA. And, most relevant to this post, here’s a post from just last year in which I explained why the Little Rock Police Department’s plan to charge $3 per CD for AFOIA responses was illegal.1

Apparently Mayflower city prosecutor David Hogue and Mayflower Chief of Police Robert Alcon are not Blue Hog Report readers. I say that because I recently received an email that read:

I wanted to see if you were aware of what Mayflower is doing with AFOIA requests. They have instituted the following policy:

-Copy of Reports: $10

-Extra Videos not considered part of case file (i.e., internal office security video): $5

-Provided Thumb Drive containing requested information: $10

According to the fine citizen who alerted me to this, “this policy is being sent out by the Chief of Police, Robert Alcon, and he says that the new policy was ‘due to the increase of FOIA requests’ and was done ‘with the approval of City Prosecutor David Hogue.'” Additionally, “the chief also said that no records will be produced or located until payment has been made.”

David Hogue, who apparently signed off on this new policy.

/pinches bridge of nose
/sighs in exasperation

If you’re scoring at home2, there are at least four AFOIA violations at play here, which is an impressive total for such a short policy. Impressive numbers of violations, however, are still violations. We’ll tackle each of these in turn, but, first, for the kids who haven’t been paying attention, let’s review an important fact about the AFOIA.

Right there in the statute3, it says (emphasis mine), “Except as provided in ยง 25-19-109 or by law, 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.” Actual costs of reproduction would include, for example, the price of a piece of paper or the cost of a CD-R or of a thumb drive.

Everyone on the same page now? Good. Now let’s look at what Mayflower PD plans on charging.

First, regarding the $10 charge for “copy of reports,” there is a state law that allows a police department to charge $10…but only for accident reports.4 That statute reads, in pertinent part, “In order to partially reimburse county and municipal law enforcement agencies for the cost of making copies of motor vehicle accident reports and copies of records of traffic violations, there shall be charged a fee of ten dollars ($10.00) for each copy of a basic accident report and a fee of one dollar fifty cents ($1.50) per page for each copy of a supplemental report.”

It appears that Chief Alcon and Mr. Hogue are trying to extrapolate from that and pretend like every report can be $10. This is wholly incorrect. There is even an old latin maxim to explain why it is incorrect: expressio unius est exlusio alterius, or (loosely), “the express mention of one thing in a class excludes all other things in that class.” By allowing a police department to charge $10 for copies of accident reports “in order to partially reimburse…agencies for the cost of making copies of motor vehicle accident reports,” the legislature has actively and directly foreclosed the ability of an agency to rely on that statute to charge $10 for any other kind of report.

Because a blanket charge of $10 for non-accident police reports is not supported “by law” within the meaning of the AFOIA, Mayflower can only charge for the actual cost of reproduction. Importantly–because I am sure this is likely to come up–the statute also makes clear that Mayflower (or any entity subject to the AFOIA) cannot charge for copies made for the purpose of redacting information. They also cannot charge, as noted a few paragraphs up, for time spent locating and copying (or scanning) records. Meaning, if a person were to request a non-accident police file in electronic format, the only costs Mayflower could charge for would be the CD that the record was burned to, plus whatever infinitesimal cost that one scan and one CD creation represented over the life of a scanner and of a CD burner, respectively. Or…something between about 18 and 30 cents.

The above analysis would also apply to the second part of the new Mayflower policy, the purported charge of $5 for “Extra Videos not considered part of Case File,” so there is no real need to rehash that same argument here. What is worthwhile, though, is recognizing that this prong is a great example for why the policy is illegal on its face.

Consider this hypothetical: One person requests a case file in electronic format, while another requests a security video from some part of the police department. Both receive their requested records on CDs that came from the same package of CDs. In this scenario, the person who requested the case file is paying $10, while the person who requested the video is paying $5, despite the fact that the medium on which they received the records is identical. Yet…the statute makes clear that the medium of reproduction is about the only part of these two requests for which Mayflower can even charge. So how could the same medium of reproduction cost two people two different amounts? (It can’t. At least not legally.)

The third prong of the Mayflower PD policy is that they are going to charge $10 for a thumb drive for production of records. If those drives really are costing the police department $10 each, this could theoretically be acceptable. Of course, it takes all of 10 seconds on Amazon to see that you can get a pack of 10 2GB drives for $27, or $2.70 each. So that $10 cost is going to be pretty hard to justify in the future, even if it is ok at the present.

Where the thumb-drive policy runs into real problems is not price, though, but the seemingly mandatory nature of the policy, whereby Mayflower PD is only going to produce requested records on one of their thumb drives. The AFOIA allows a requestor to receive records in any format in which the records currently exist or any format to which it is readily convertible using the agency’s existing hardware and software. Meaning, a person who requests electronic copies of records emailed to them is entitled to receive the records via email, a person who requests those records on a CD is entitled to receive them on CD, and a requester who offers to provide his own USB drive or CD is entitled to receive them that way.5 To the extent that Mayflower’s new policy appears to foreclose the right of requesters to receive the records in these other manners, it absolutely violates the AFOIA.

The fourth AFOIA violation in the policy is more subtle than the first three, and it is the comment that “the chief also said that no records will be produced or located until payment has been made.” Assuming this is true, it is a problem for Mayflower. The AFOIA says, “If the estimated fee exceeds twenty-five dollars ($25.00), the custodian may require the requester to pay that fee in advance.” If someone asks for a police report or a video–especially if he or she requests it in electronic format–even under Mayflower’s (illegal) fee structure, that is well short of $25. Meaning that Mayflower cannot require advance payment before they will fulfill the request; they can only fulfill the request and receive payment at the time the records are picked up.

The AFOIA has been in existence since 1967. The provision regarding “actual cost of reproduction” was put in place in 2001 by the Arkansas General Assembly, and it has been discussed over and over again by both the Arkansas Attorney General and the Arkansas appellate courts. The only reasons I can think of for an agency in 2019 to propose such an obviously improper policy regarding costs for AFOIA compliance are either abject ignorance of the AFOIA generally or, more likely, a desire to reduce the amount of requests (and, by extension, the amount of transparency). Neither is a good look for a police department, especially where that police department claims that a lawyer for the city approved of the new charges.

If you would like to make an AFOIA request to the Mayflower police department, the easiest way is by fax to 501-470-9068. If you do make a request for a police report or a video and they attempt to charge you under this new policy, let me know.

  1. They quickly abandoned this plan after that post went up.

  2. Or if you’re alone!

  3. Ark. Code Ann. 25-19-105(d)(3)(A)(i)

  4. Ark. Code Ann. 27-53-210(b).

  5. Though the requester in that scenario may be required to provide a new drive/CD in its original packaging to protect against malware.

Recent Articles

Related Stories