County Prosecutor Looking To Arrest Housing Official After Agency Demands $16,000 To Fulfill FOIA Request

from the a-bandwagon-worth-jumping-on dept

Mon, Nov 10th 2014 4:02pm — Tim Cushing

This may be about 60% stunt and 40% forceful nudge, but I'm still behind it 100%. For far too long, public officials have treated Freedom of Information laws as an annoyance... at best. In many cases, information designated as eligible for freedom has to be pried out of officials' hands using lawsuits, needlessly-protracted appeals processes or crowd-sourced tenacity.

Pulaski County Prosecuting Attorney Larry Jegley said he will issue an arrest affidavit today against Rodney Forte, the executive director of the Metropolitan Housing Alliance in Little Rock, for a violation of the Arkansas Freedom of Information Act.

First off, you can be arrested for violating this act. In Arkansas, any violation of its FOIA law can result in this penalty.

Any person who negligently violates any of the provisions of this chapter shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars ($200) or thirty (30) days in jail, or both, or a sentence of appropriate public service or education, or both.

It's nice to see someone following the letter of the law. Not following the letter of the law (and steamrolling its spirit) is what put Forte in the prosecutor's sights. Forte had decided to greet a FOIA request he didn't want to fulfill with the time-honored anti-FOIA tactic of pricing his agency out of the market.

The action comes after the Metropolitan Housing Alliance sent an invoice to the Arkansas Democrat-Gazette late Tuesday,charging more than $16,000 to hire outside workers to help the agency comply with a records-release request -- a practice the Little Rock city attorney and other Arkansas Freedom of Information Act experts say is illegal.

It may be illegal, but plenty of agencies do it without suffering anything more than a loss in the court of public opinion. Sure, they may eventually face lawsuits, but that's really just public money being spent in defense of a publicly-funded agency's desire to keep the public separated from public documents. It's about as painful to the offending agency as being punched in someone else's wallet.

This particular form of enforcement is rarely (if ever) deployed, although Arkansas seems to be more aggressive than most states when it comes to punishing violators. In Jegley's 23 years as a county prosecutor, he's never seen this happen. Usually some sort of compromise between requester and requestee is reached before it gets to this point. But that hasn't happened in this dispute, which has been ongoing for several months now -- even involving Little Rock's mayor's intervention on behalf of the requesting party, the Arkansas Democrat-Gazette.

Little Rock Mayor Mark Stodola contacted Forte on Wednesday in an attempt to intervene in the latest dispute over records. Stodola is a former Little Rock city attorney and Pulaski County prosecutor.

"I am not familiar with any request for payment for such a large nature as this and based on my interpretation of the Freedom of Information Act, the computer systems that the agency has are required to make this information readily available," Stodola said.

"These kinds of document requests are routine, and when I was prosecutor, virtually all of this kind of information [at most agencies] is kept in an electronic format that can be downloaded quite easily."

Forte claims proprietary software is involved and all documents would need to be printed and scanned before they could be released, but has failed to detail what software the agency is using or released any other technical details. He has also hasn't discussed his agency's failure to comply with another section of the state's FOIA law.

Arkansas Code Annotated 25-19-105 (g) states that any software acquired by an agency "shall be in full compliance with the requirements" of the Freedom of Information Act and "shall not impede public access to records in electronic form."

So, Jegley has answered Forte's obfuscatory power play with one of his own. At this point, Forte's arrest is in the hands of a judge. Jegley still needs to turn his affidavit into a warrant, at which point it may expand to include others involved in the Metropolitan Housing Authority's $16,000 fiasco.

Hopefully, this move will force the documents out of the agency's hands. Clearly, there's something in there it wants hidden -- something likely related to agency's addition of a $92,000/yr deputy executive director during a period when it was shedding nearly a third of its staff and reducing pay to non-salaried employees.

Even if this goes nowhere, it's still incredibly refreshing to see public servants acting to hold other public servants accountable. Other states should take a good look at Arkansas' FOIA law and think about giving their own a few teeth by making violations an arrestable offense.

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Filed Under: arkansas, arrest, fees, foia, journalism, larry jegley, little rock, prosecution, rodney forte

33 Comments

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Anonymous Coward, 10 Nov 2014 @ 4:34pm

Odd...
I just hit print, Save As->PDF
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AricTheRed (profile), 10 Nov 2014 @ 4:41pm

Team America Hell Yeah!
If this goes to court I hope that Larry Jegley wears a cape, 'cause he's my effing hero from Arkansas!
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Mason Wheeler (profile), 10 Nov 2014 @ 4:48pm

Negligent?
Any person who negligently violates any of the provisions of this chapter shall be guilty of a misdemeanor...

"How do you plead?"

"Not guilty, your honor. The statute specifies the standard of guilt as negligence, and my acts were completely willful."

"The court finds the defendant not guilty." *gavel whack* "Court is adjourned."
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Anonymous Coward, 10 Nov 2014 @ 4:53pm

This particular action needs to spread on thickly with the government and all it's branches that there is a law involving FOIA. I believe there was also an executive order to make it so coming from Obama that has been pretty much ignored.
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Anonymous Coward, 10 Nov 2014 @ 5:02pm

all documents would need to be printed and scanned

Only government would have a workflow involving printing something and then immediately scanning it back into the computer.
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Anonymous Anonymous Coward, 10 Nov 2014 @ 5:03pm

Re:

"shall not impede public access to records in electronic form."

PDF not necessary (it would probably just upload everything to Adobe if they use Reader), just a thumb drive, or an email attachment.
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That One Guy (profile), 10 Nov 2014 @ 5:09pm

Re:
It's to make it as difficult as possible to search the results. The source file could be searched easily for specific words, phrases or numbers, whereas a badly scanned document would take much more work to do the same.

Also helps to pad out the time and effort required, to make it seem like a much more difficult, and therefor expensive task, but I'm pretty sure information obfuscation is the primary reason behind such moves.
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Anonymous Coward, 10 Nov 2014 @ 5:22pm

Re: Re:
When they claim to not have documents specifying whether someone was fired, laid off, or resigned, and then refuse to even say whether they know the answer to that question, then it's pretty obvious that they're just trying to block information from getting out.
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Anon E. Mous (profile), 10 Nov 2014 @ 5:58pm

I am sure Mr.Hoeppner, the 75 yr old senior who had the Marathon County sheriff's SWAT team and their armored vehicle show up on his door step to collect an unpaid series of fines totaling around 80k is having a sense of Deja Vu right now.
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Anonymous Coward, 10 Nov 2014 @ 6:20pm

Honest question: if only a 200 dollar fine were levied (and not jail time) could the defendant pass the liability up the stack and have that paid by his employer?
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That One Guy (profile), 10 Nov 2014 @ 6:46pm

Re:
I wouldn't think so, fines are, or at least should be, person specific, you shouldn't be able to just pass them on to someone else, as that would remove the entire punitive aspect to it.
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tqk (profile), 10 Nov 2014 @ 7:11pm

Re: Re:
And why the !@#$ would you need to hire outside consultants to do something any five year old can do? I doubt the documents in question even need to be searched for, since they've been sitting on this for months now wondering if they can get away with, "Oopsie, I accidentally deleted it, sorry." They know exactly what documents we're talking about.

I suspect somebody's going to jail for this when all's said and done. Yay Fourth Estate for holding their nose to the grindstone!
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toyotabedzrock (profile), 10 Nov 2014 @ 9:29pm

$200 or 30 days in jail seems like a big mismatch that is designed to decimate the poor.
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tqk (profile), 10 Nov 2014 @ 9:36pm

Re:
How many poor are going to get hit with a FOIA request?
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Anonymous Coward, 10 Nov 2014 @ 10:04pm

No Comment
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Andrew Norton (profile), 10 Nov 2014 @ 11:16pm

Re: Negligent?
Willful negligence exists.
Intentional performance of an unreasonable act in disregard of a known risk, making it highly probable that harm will be caused. Willful negligence usually involves a conscious indifference to the consequences.

just because it's willful, doesn't stop it being negligence, just means you were negligent on purpose, which makes things worse.
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beltorak (profile), 11 Nov 2014 @ 12:35am

minor point, but
> Forte claims proprietary software is involved and all documents would need to be printed and scanned before they could be released

That right there is the single most powerful reason to strictly enforce open software and open standards in government. That is such a completely bullshit response. The money spent on licensing proprietary garbage could instead be spent to sponsor development of the tools you need.
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Anonymous Coward, 11 Nov 2014 @ 2:11am

Re: Re:
Scan to an image on a dirty scanner, it makes OCRing very difficult to impossible, and forces the recipient to re key it if they want to make it searchable. Also the approach makes for transcription errors in the re-key, reducing the worth of the document. Print to PDF, and then rescan is a deliberate move to reduce the utility of responses.
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Anonymous Coward, 11 Nov 2014 @ 3:23am

Re: Re: Re:
Of course it is. That's one of the reasons that FOIA responses are often provided on paper -- to frustrate analysis. It's not an accident. It's not a fallback. It's a deliberate tactic, willfully used in order to make research as tedious as possible in order to conceal the truth.
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Anonymous Coward, 11 Nov 2014 @ 6:26am

Re:
That's true for some laws. But for this law in particular, we're talking about government employees - and ones that are high enough to have the authority to approve or deny FOIA requests. In this case, they're going after an executive director. I don't think he'll have a problem coming up with $200.

Rich people could get both the fine AND the jail time, if the judge wanted. For a poor person who couldn't afford the fine and didn't deserve jail, it could instead be "a sentence of appropriate public service or education," according to the law.
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The Groove Tiger (profile), 11 Nov 2014 @ 7:10am

Re: Re:
He means if the software has no option to export data, as the guy claims, you can always use the PDF printer driver (essentially Print-To-File).
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Anonymous Coward, 11 Nov 2014 @ 7:27am

"It has to be printed and then scanned"

so thats how our govt works - explains a lot!
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Anonymous Coward, 11 Nov 2014 @ 9:07am

Re: Re: Re:
You can even get that software for free or next to nothing with CutePDF Writer if you can't afford Adobe licensing.
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Anonymous Coward, 11 Nov 2014 @ 9:07am

Re: Re: Re:
You can even get that software for free or next to nothing with CutePDF Writer if you can't afford Adobe licensing.
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Anonymous Coward, 11 Nov 2014 @ 9:07am

Re: Re: Re:
You can even get that software for free or next to nothing with CutePDF Writer if you can't afford Adobe licensing.
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Anonymous Coward, 11 Nov 2014 @ 9:07am

Re: Re: Re:
You can even get that software for free or next to nothing with CutePDF Writer if you can't afford Adobe licensing.
[ link to this | view in thread ]
Anonymous Coward, 11 Nov 2014 @ 9:07am

Re: Re: Re:
You can even get that software for free or next to nothing with CutePDF Writer if you can't afford Adobe licensing.
[ link to this | view in thread ]
Anonymous Coward, 11 Nov 2014 @ 9:07am

Re: Re: Re:
You can even get that software for free or next to nothing with CutePDF Writer if you can't afford Adobe licensing.
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Mason Wheeler (profile), 11 Nov 2014 @ 10:50am

Re: Re: Negligent?
That was supposed to be funny. Would it work better if I used the word "malicious" instead? :P
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Anonymous Coward, 11 Nov 2014 @ 12:14pm

Might also be related to Forte's purchase of his brand new car, house, second home, holiday home etc etc
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Anonymous Coward, 11 Nov 2014 @ 12:16pm

Re: Re: Re:
taking bets the documents already got "burned all up by one of them there computer firewall things"....
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tqk (profile), 11 Nov 2014 @ 1:06pm

Re: Re: Re: Re:
Are you done yet?
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Bergman (profile), 11 Nov 2014 @ 9:55pm

Re: Re: Re:
Considering the law requires them to be capable of complying with a FOIA request, the fact that they want to charge $16,000 to hire someone to enable them to comply says it all -- no matter how you slice it, they're breaking the law.
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