ualr foia lawsuit

Campbell – Complaint of 9 Page 1 of 9

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS _________ DIVISION

MATTHEW CAMPBELL PLAINTIFF v. Case No. 60CV-15-_________ JOANN MAXEY, IN HER OFFICIAL CAPACITY; DEFENDANTS MICHAEL SCHWARTZ, IN HIS OFFICIAL CAPACITY; UNIVERSITY OF ARKANSAS, AKA UNIVERSITY OF ARKANSAS—LITTLE ROCK

COMPLAINT

1. This case is an appeal from denial of rights guaranteed under the Arkansas

Freedom of Information Act (AFOIA), brought pursuant to Ark. Code Ann. § 25-

19-107(a), and a claim of violation of the Arkansas Whistle Blower Act (WBA),

Ark. Code Ann. § 21-1-601, et seq.

Parties, Jurisdiction, and Venue

2. Plaintiff Matthew Campbell is a resident of the State of Arkansas, and he brings

this action in his capacity as a person entitled to request and receive certain public

records under the AFOIA, Ark. Code Ann. §§ 25-19-101, et seq.

3. Defendant JoAnn Maxey is an attorney employed by the State of Arkansas in the

office of general counsel for the University of Arkansas system, and she is sued in

her official capacity, as she interjected herself into the timing and delivery of

Defendants’ response to a proper AFOIA request, meaning she has administrative

control over certain records that form the basis of this lawsuit, which makes a


“custodian” of those records under Ark. Code Ann. § 25-19-103(1)(A). See

generally Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004).

4. Defendant Michael Schwartz is the Dean of the UALR William H. Bowen School

of Law (Bowen), and he is sued in his official capacity, as he has administrative

control over certain records that form the basis of this lawsuit, making him a

“custodian” of those records within the meaning of Ark. Code Ann. § 25-19-

103(1)(A). See Fox, 358 Ark. 251, 188 S.W.3d 881.

5. Defendant University of Arkansas (UA), aka University of Arkansas—Little Rock

(UALR), is a “department, agency, or institution of the” State of Arkansas that

“is wholly or partially supported by public funds,” making UA/UALR subject to

the AFOIA’s requirements of providing access to certain public records upon

request. See generally Ark. Code Ann. §§ 25-19-103 & -107.

6. Jurisdiction and venue are proper in this Court, as UA/UALR is “a department,

agency, or institution of the” State of Arkansas. See Ark. Code Ann. § 25-19-

107(a) (mandating that all suits against an institution of the state are to be brought

in Pulaski County, Arkansas).

Relevant Legal & Statutory Framework

7. For nearly fifty years, it has been a well-settled truth that he AFOIA was “passed

wholly in the public interest and is to be interpreted liberally.” Laman v. McCord,

245 Ark. 401, 405, 432 S.W.2d 753, 755 (1968).

8. That liberal interpretation means that, “whenever the legislature fails to specify

that any records in the public domain are to be excluded from inspection…then


privacy must yield to openness and secrecy to the public’s right to know the status

of its own affairs.” Ragland v. Yeargan, 288 Ark. 81, 85, 702 S.W.2d 23, 25 (1986).

9. Furthermore, even the express AFOIA exemptions found in Ark. Code Ann. § 25-

19-105 are to be narrowly construed. See Hengel v. City of Pine Bluff, 307 Ark. 457,

821 S.W.2d 761 (1991); see also Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

(holding that AFOIA exemptions are to be narrowly construed “in a manner that

favors disclosure”).

10. Under the AFOIA, “If a public record is in active use or storage and therefore not

available at the time a citizen asks to examine it, the custodian shall certify this fact

in writing to the applicant and set a date and hour within three (3) working days at

which time the record will be available for the exercise of the right given by this

chapter.” Ark. Code Ann. § 25-19-105(e).

11. Subsection 105(e) does not mean that an entity has three “business days” in

which to respond to every AFOIA request; only where the record is “in active use

or storage” and “is therefore not available” when it is requested.

12. As the Supreme Court has explained, when dealing with a statute that is

ambiguous, “the basic rule of statutory construction, to which all other

interpretative guides are really subordinate, is to give effect to the legislative

intention.” Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).

13. Statutes are to be read as a whole and interpreted in a manner that makes all parts

harmonious if possible. See generally Ortho-McNeil-Janssen Pharms., Inc. v. State,

2014 Ark. 124, 432 S.W.3d 563. Additionally, as is relevant here, one of the


primary rules of interpreting a statute is to “construe the statute so

that no word is left void, superfluous or insignificant, and [to] give meaning and

effect to every word in the statute, if possible.” City of Little Rock v. Jung Yul Rhee,

375 Ark. 491, 292 S.W.3d 292 (2009).

14. The legislative intent behind the FOIA is so that “public business [will] be

performed in an open and public manner.” Fox, 358 Ark. 251, 188 S.W.3d 881. To

help effectuate this goal, the courts have consistently interpreted the provisions of

the FOIA in favor of more access and more disclosure. See, e.g., McCambridge v.

City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).

Relevant Facts

15. On December 16, 2015, at 10:26 a.m., Plaintiff sent an AFOIA request to

Defendant Schwartz, requesting “All emails regarding Robert

Steinbuch; Steinbuch v. UALR, et al.; Prof. Steinbuch’s scholarly research; and/or

Matt Campbell.” This request specifically pertained to “all emails, whether sent

or received, by UALR-Bowen faculty other than Prof. Steinbuch, as well as by all

UALR-Bowen staff and/or administrators.”

16. Defendant Schwartz did not respond to this request directly. Rather, on

December 17, at 12:05 p.m., Defendant Maxey emailed Plaintiff, stating, in

pertinent part:

The documents you have requested are in active use and storage. UALR, including the law school, is closed for the winter break beginning Friday, December 18. The school will re-open on January 4, 2016. We will provide a response to your request within 3 business days, which will make our response to you due on or before January 4, 2016.


17. Plaintiff responded to Defendant Maxey at 12:33 p.m., explaining that Maxey’s

proposed response time was incorrect as a matter of law and of statutory

interpretation. Specifically, as is relevant here, Plaintiff explained,

A record is either in active use (e.g., it is literally being used by someone right now in such a way that providing a copy would impact their ability to use the record), in storage (e.g., it is in a location where it is not readily available such that immediately providing the record is impossible), or it is simply in the office and otherwise available. Emails, of course, fall into this third category. To suggest otherwise is to pretend like emails are somehow “stored” in a location that makes them unavailable or that the mere fact that an email is in someone’s account makes it “in active use.” Both of these assumptions are false for reasons that I assume are readily apparent. Because emails are neither in active use, nor in storage, the three-day response time does not apply. Rather, the records need to be provided more or less immediately, or within the short period of time that it takes for the staff to search and forward the responsive documents to the custodian.

18. At 4:10 p.m., Defendant Maxey responded, stating:

Thank you for providing you [sic] perspective. I respectively [sic] disagree. […] With regard to your request to Dean Schwartz, your request is not sufficiently narrow for us to respond immediately.

19. In his response at 4:29 p.m., Plaintiff agreed to limit the scope of his request to all

responsive emails that were sent or received subsequent to November 20, 2015.

20. Defendant Maxey replied at 6:54 p.m., stating, “As I noted in my initial email to

you, we do not believe that a response is due until Monday, January 4, 2016. “

21. Defendant Maxey’s assertion about when they “believe that a response is due” is

belied, however, by the actions and statements of Defendant Schwartz, who sent

an email to all UALR faculty, staff, and administrators on December 17 just before


4:45 p.m., stating, “Every faculty member (except Professor Steinbuch as

indicated), every staff member, and every administrator must search her or his

emails for responsive emails in all of the categories referenced in” Plaintiff’s

AFOIA request.

22. Defendant Schwartz then quickly sent a follow-up email to all of the faculty, staff,

and administrators, stating correctly, and in no uncertain terms, “I need all the

emails by the end of the day tomorrow.”

23. To date, Plaintiff has received no documents responsive to his AFOIA request,

nor has Defendant Maxey explained why she intentionally misstated Schwartz’s

position regarding when the documents were due.

Claim I: Violation of the AFOIA

24. Plaintiff restates and reasserts the facts, contentions, and allegations contained in

paragraphs 1 through 23, supra, as if set out word for word herein.

25. Plaintiff, like any citizen of the State of Arkansas, has a right to receive public

records from UA/UALR upon request, with the obvious caveat that any exempt

information shall be excluded from the records that are provided. See Ark. Code

Ann. § 25-19-105(a)(1)(A); Ark. Code Ann. § 25-19-105(f); see generally Hopkins v.

City of Brinkley, 2014 Ark. 139, 432 S.W.3d 609.

26. Plaintiff’s request was made early in the day on December 16, 2015, yet Defendant

Schwartz did not bother to forward that request to staff, faculty, and/or

administrators until nearly 5 p.m. on December 17.


27. Defendant Schwartz instructed persons who had documents responsive to

Plaintiff’s request to provide those documents to Schwartz by the close of

business on Friday, December 18, 2015; for whatever reason, Defendant Maxey

took it upon herself to incorrectly assert that the documents were not due to be

provided to Plaintiff until January 4, 2016.

28. Defendant Maxey’s uninformed “belief” as to when the documents were due is

not only irrelevant to this Court’s analysis, but it is also incorrect as a matter of

statutory interpretation, inasmuch as:

a. Records by definition cannot be in both “active use and storage,” as

Maxey asserted;

b. The records requested by Plaintiff—emails sent or received within the

past month or so—are neither in active use nor in storage, and, therefore,

the three-day provision under subsection 105(e) is inapplicable;

c. Because the three-day provision does not apply, Defendants were required

to provide the requested records more or less immediately, or certainly no

later than the time it took to search for responsive records and provide

them to Defendant Schwartz, which—by Schwartz’s own admission—was

by Friday, December 18.

29. Even if the requested records were in active or storage—which they were not—

Defendants were not entitled to three days’ response time without also

demonstrating how the records’ being in active use or storage also specifically

made them unavailable at the time of Plaintiff’s request; because Defendants did


not even reference unavailability in the context of 105(e), let alone demonstrate

actual unavailability as to every record that was requested, Defendants’ reliance

on that provision is misplaced and without merit.

30. Moreover, contrary to Defendant Maxey’s reference to “business days” in the

context on subsection 105(e), that statutory provision actually refers to “working

days.” Ark. Code Ann. § 25-19-105(e).

31. The statute does not specify that a custodian is entitled to three full eight-hour

business-day periods before a response is required under subsection 105(e);

“regular business hours” are only referenced in defining when records are open to

inspection pursuant to a request. See Ark. Code Ann. § 25-19-105(a)(1)(A); see

generally Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991).

32. Defendants therefore had three “working days” in which they could have

provided the requested records: Wednesday, December 16 through Friday,

December 18. Nothing in the statute allowed Defendants not to count December

16 as one of the “working days” under the statute.

33. Thus, even in the best-case scenario for Defendants (e.g., where the three-day

provision of 105(e) was applicable), Defendants’ response was still due no later

than Friday, December 18.

34. Accordingly, Defendants’ failure to provide the requested records in the

appropriate amount of time is a violation of the AFOIA, for which Plaintiff is

entitled to relief from this Court.


Prayer for Relief

35. Plaintiff is entitled to a hearing on the AFOIA aspect matter. See Ark. Code Ann.

§ 25-19-107(b).

36. Plaintiff does not waive the seven-day requirement under Ark. Code Ann. § 25-19-

107(b), and he asks that this Court “fix and assess a day the petition is to be heard

within seven (7) days of the date of the application of the petitioner, and to hear

and determine the case.” Ark. Code Ann. § 25-19-107(b).

37. Plaintiff reserves the right to seek reasonable attorney’s fees and costs from the

Arkansas Claims Commission upon successful completion of this case. See Ark.

Code Ann. § 25-19-107(e)(2)(B).

WHEREFORE the Plaintiff, Matthew Campbell, prays that this Court will hold a

hearing and enter an Order finding Defendant violated the AFOIA by failing to provide

requested records in a timely manner, ordering Defendants to provide the requested

records immediately, and granting Plaintiff any other relief to which he may be entitled in

law or in equity.

Respectfully submitted,

/s/ Matthew D. Campbell Ark. Bar No. 2009032 Pinnacle Law Firm, PLLC P.O. Box 7469 Little Rock, AR 72217 P: (501) 396-9246 F: (501) 421-0189 [email protected]

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