Arkansas

Arkansas Supreme Court Rules Against Jacksonville Police Department for Trying to Include Employee Wages in FOIA Fee and Complaining About FOIA Request Being "Too Burdensome"

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fought the law and won, mostly

A woman named Partne Daugherty has been fighting the Jacksonville Police Department in Arkansas since 2010 over a speeding ticket she says she didn't deserve. She says after getting the ticket and investigating where the police officer said he was using his radar gun, she determined it was impossible he could've registered her on it (and she maintains she wasn't speeding). The Jacksonville Police Department complained her requests (for days' worth of audio and video data) were too broad and too burdensome, wanted to charge $2,500 to fulfill the request, and destroyed records she requested.

Yesterday, the Supreme Court ruled that while a government agency may require more specificity to a FOIA request, it cannot cite burden as a reason not to fulfill it. Further, the court ruled employee wages could not be included in the fee assessed to someone making a FOIA request. Both set new case law where none existed before for FOIA in Arkansas.  

However, the court also ruled Daughtery had not proven the police department had negligently violated FOIA law by destroying records, which the court said she needed to "regardless of how improvident the Department's retention policy may be." The Police Department purges audio and video records every 45 days due, it says, to storage capacity limitations.

The Arkansas Times'  Arkansas Blog provides some interesting background on Daugherty, who represented herself in front of the Supreme Court:

Her knowledge of the FOI, police recordkeeping practice and computer techniques produced the video of Little Rock police actions in the arrest of Surgeon General Joe Thompson at his home. Those tapes showed police had misrepresented his behavior the night he was arrested at his home for initially refusing to comply with an officer's demand that he identify himself. Thompson cited the evidence compiled by Daugherty when he commented on an agreement that resulted in a decision to drop charges against him…

Several in the criminal justice system… [have] complained since Daugherty emerged as a critical player in the Joe Thompson case that she deserved scrutiny for a criminal charge in her past and a lengthy appeal (when she was known by a different name) in which she attempted unsuccessfully to have records of that case sealed…

She's also leased billboards to display sometimes enigmatic messages. For example, one by the Gander Mountain store said:

"When the justices are away, the opinion rats will play."

…Partne, several have noted, is "entrap" spelled backwards.

Especially in light of attempts by police from North Carolina to Philadelphia to try to intimidate civilians who attempt to bring accountability and transparency to law enforcement, we need more Daughertys, no matter the name they go by.

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  1. Huh. I wonder if a standard record destruction process is a defense if you destroy records that you know may be the subject of litigation? Seems a little fishy to me.

    1. Actually, I’ve given this a lot of thought and some research.

      You are allowed to have a document retention/destruction policy that calls for deletion/destruction of documents ‘in the ordinary course of business’. That 45 day policy is on the shortish side, but probably fine.

      However, but I can assure you that if a private entity got a subpoena for documents, it would be in serious trouble if it destroyed those documents per policy while fighting the subpoena.

      I can’t imagine why a government agency should be permitted to destroy documents for which it has an actual FOIA request, even if it is contesting the request. Well, other than the usual double standard from which Our Masters always benefit.

      1. That’s what I was thinking about–how things work for business. Allowing destruction of documents relevant to pending litigation, regardless of the policy, is a big no-no in the real world.

        My only question is whether FOIA requests carry the same teeth. It’s not the same as litigation, after all, but it does seem to fly in the face of the purpose of FOIA to allow this practice. After all, if the time period between document purges is short enough, being able to destroy requested documents “per policy” would allow the agency to just delay things until the policy takes care of the problem.

        1. It’s the new professionalism in document retention policies.

          You know, just like how relevant sections of surveillance video, that would completely contradict officer testimony and vindicate the accused’s version of the events, mysteriously disappear at the worst possible moment for the victims.

          Darn those pesky coincidences.

          1. Frankly, I think government should have to retain everything forever. In the giant warehouse where they keep the Ark.

            1. Bureaucratic fools!

        2. My only question is whether FOIA requests carry the same teeth.

          Apparently not. Double standard, Our Masters, you know the drill.

          The federal rule on this has a safe harbor for destruction of electronic records “as a result of the routine, good faith operation of an electronic information system.” Which sounds very friendly, no? However, your protocol has to call for suspending the destruction cycle for any backups, etc. that may contain information responsive to a subpoena or request.

          So, basically, failing to suspend the protocol (what is known as a “litigation hold”) takes you out of the safe harbor. As a practical matter, the courts haven’t been terribly clear, as far as I know, on whether they really will apply spoliation sanctions in the absence of some showing of negligence. Generally speaking, I think they treat destruction of evidence after receiving a subpoena as res ipsa loquitur (Latin for “you lose”). There are cases out there talking about ordinary v. gross negligence v. intentional destruction, but I’ve never heard of a litigant destroying evidence and not being sanctioned for it.

          Caveat: I am not a litigator.

          1. Government wins again! [Shakes fist futilely.]

      2. RCDean, the 45 day retention policy for police communications is not fine. I have had this pulled on me even when the communications are cited as evidence in a police report. Defendants should be allowed to know the exact wording of police communications deemed important enough to be referenced in a police report. The average kid who listens to music has the capacity for thousands of days of police communications. Police want to hide what is going on.

        1. It seems awfully short to me, especially considering that even they likely have a lot records in digital format these days.

          1. Storing that information gets mighty expensive, there has to be some sort of purge policy. But getting rid of info that pertains to a pending case / current investigation just seems wrong.

            1. Maybe Cato should offer to store all government archival information.

        2. the 45 day retention policy for police communications is not fine.

          Oh, I agree, as a policy matter, it should be more like a year.

          However, I was talking about the sort of retention policy that can pass muster under the federal rules, which doesn’t set a minimum.

      3. When it comes to FOIA, it does not contain a specific Record Retention Requirement, per se. Rather, it requires that the public records be available to the public if the records are currently being maintained.

        From that point, the requirement to maintain the public records has to be consistent with the state/federal statutory record retention policies, if any exist. If none are controlling, then other record retention policies must be examined to determine if the records are required to be maintained by Administrative Regulations, Admin. Directives, City or County Ordinanaces, etc.

        In this case, there is a SPECIFIC STATE STATUTE which governs the record retention requirements of “Municipal Police Departmetns” (Ark. COde Ann 14-2-204).

        The problem with the Court not ruling on this issue is that I did not discover this obscure statute until AFTER the case left the circuit court. The Court is limited to considering argument raised in the circuit court hearing.

        Specifically, the Court stated: We are precluded from addressing the question of whether a violation of a statute, such as section 14-2-204, necessarily implicates a violation of the FOIA. We are limited to the
        issue raised below, specifically that the Department’s action was a violation of Ark. Code Ann.
        ? 25-19-104 (Supp. 2011).

        As the statutory issue was not raised below, the Court was bound to consider ONLY the issues, statutes, and argument raised below.

        A City/Municipal Police Department’s Record

    2. What about all the laws that require private companies to maintain records for 20 years or whatever.

      I mean, I have to hang on to a receipt for a TV I donated to Salvation Army seven years ago under penalty of jail, yet the cops can destroy evidence connected to a court case after a month and a half?

      1. Sales books for FFLs.

    3. It is unconstitutional. Brady v. Mayland established that exculpatory and impeaching evidence MUST be turned over to the Defense. As such, destruction of evidence is a CLEAR violation of this reknowned case.

  2. Awesome

  3. My rule is to stay off the cops’ radar (no pun). But once you’re on it you might as well be as big a pain in the ass as possible.

    1. Sage, you are a good man.

  4. I assume that if this lady becomes a big enough deal, statists will use the fact that she’s a bit of a whack job to discredit FOI. Because they’re execrable like that.

    1. I am no whack job. I am HIGHLY intelligent. Having balls to take on a few bad cops does not make me a “Whack”,… It makes me a good citizen doing my “civic” duty… If we do not question the establishment and keep the “System” balanced and in good-working order, we will find outselves living in a country similar to China. WE value OUR FREEDOM and OUR ability to scrutinize the government. We are all entitled to opinions…. I respect yours. Please show me the same respect and refrain from referring to me as a “WHACK”. You have the right to think and feel that way. I am respectfully telling you that I am not such. If I am, then this country needs more WHACKS that stand up for our families, friends, and neighbors. Next time, it could be YOU that the cops choose to bestoe their love and power upon…

  5. …I was sentenced to a $500.00 fine and THIRTY (30) DAYS in the Pualski COunty jail as a result of this BOGUS speeding ticket.

    You can go to jail in Arkansas if you contest a speeding ticket and lose?

    1. Note to self: stay out of AR.

      1. The problem with AR is that it is in a police state called U.S.A.

    2. You can get a $500 fine for speeding?

      I was 25 over in a school zone and I think I got out for abour $100.

      1. My last ticket was for 65 in a 45 (I was going 60 in a 55. Did I ever mention that I hate cops?) and the fine was $180.

        1. And you didn’t contest this…why? The ticket should have the intersection/address on it. Doesn’t seem that hard to take a picture of the speed limit sign and get the engineering documentation. You should have won on that. Which state?

          1. DJK, it shouldn’t be hard to get a picture and documents. The judge and loyalist jury will ignore this evidence. The system is rigged.

          2. The ticket should have the intersection/address on it.

            He was coming from the opposite direction, after I’d left the 45mph zone and entered the 55mph zone.

            He got all pissy at me when I couldn’t find my proof of insurance immediately. I think that’s when he decided to screw me.

            The ticket said he got me on radar at an intersection a mile behind where he actually saw me, where the speed limit was 45, and for faster than I was actually going.

            It was all lies from top to bottom.

            I think it was punishment for wasting two minutes of his precious time looking for my insurance.

          3. I don’t think contesting it would have mattered.
            I did wait until the court date to pay, hoping the cop wouldn’t show. But he did.
            The judge opened everything by saying something along the lines of “Maine law says the radar is always right. Even if it is wrong. I think you’re all guilty and I hate my job. Let’s get this over with.” (I’m paraphrasing of course)

            1. Hmm…might be an example of where CA law is actually more fair than…wherever you were? I’ve had no problem getting out of CA traffic tickets based on all kinds of loopholes. Of course, there just may be more loopholes in that crazy state.

              1. wherever you were?

                It’s in there.

      2. last time I got a ticket it was 85 in a 55 construction zone. Yeah, that Buick rode so soft I kinda didn’t notice my speed until was too late. Funny thing, I was driving my slowest car at the time, otherwise I woulda sprinted for the close exit and lost the copper before he got up to speed.

        Anyway, that only cost me $180ish.

        1. Last ticket – 50 in a 35 (two lane each way, divided highway in the middle of nowhere on a sunny, clear day). Would have been about $300 in CA, but they have that awesome “excessive speed” defense and the stupid cop got my vehicle make and color wrong. That was an easy win!

          1. “excessive speed” defense? Can you elaborate?

            1. CVC 22350 and 22351 are the relevant sections here:

              22350. No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.

              22351. (a) The speed of any vehicle upon a highway not in excess of the limits specified in Section 22352 or established as authorized in this code is lawful unless clearly proved to be in violation of the basic speed law.

              1. CVC 22352 designates 65mph as the maximum allowed speed on any road in CA. If you get caught driving faster than this, you’re pretty much SOL.

                However, if you’re going slower than this, but faster than the posted speed limits, CA courts have interpreted CVC 22350 and 22351(a) to mean that you might not be breaking the law. You would need to convince a judge that your speed was reasonable or prudent based on road and weather conditions.

                1. Most other states say you’re prima facie guilty if going faster than the posted limit. CA is one of the few (maybe the only) where you can argue that you weren’t breaking the law by exceeding the posted limit.

                  Many people don’t know this defense exists, but I’ve used it successfully, as have a few of my friends.

                  1. Nice! Thanks for the tip. I know CA also has the ‘speed-trap’ law under which you can argue the speed-limit was invalid, but I didn’t know about this.

                    1. Remember that this is extremely subjective. You need to convince the judge hearing your case that your speed was reasonable and prudent. In my case, it was doing 50 mph in a two lane each way, divided highway which was nowhere near residences on a sunny clear day. And even that won’t necessarily win.

      3. I got 100 in a 55 once (btw, there is no logical reason for the speed limit on the NJ Turnpike to be 70 MPH, ever) that would have been $450 and 5 points on my license if the prosecutor didn’t knock it down to 69 in a 55 ($169 / 2 pts). The judge was pissed about that, and the fact that the trooper was nice enough not to hit me up with reckless and careless driving tickets on top of it.

        1. *Speed limit 70

          1. Apparently greater than / less than signs don’t work. This is the worst place ever.

              1. Huh. You’re right. Must be all html. is given with the symbols l t ; (take out the spaces). is given with g t;

                1. Fuck! Won’t even let me do that. Stupid site.

        2. Damn! Get caught doing that in Australia and your car is getting towed and you’re getting led away in handcuffs.

          “Call the paddy wagon boys, we got us a badass lawbreaker on our hands”

    3. Probably only if you don’t pay the fine.

    4. Yes. I served the sentence minus goodtime for working in the COunty jail’s unsanitary kitchen. Remember, standing up for your rights comes with a price. I was willing to serve jail time if it was/is necessary to make changes now to protect my family and children in the future… I would take a bukket for my children…Would you?

  6. The LRPD has a record retention policy of 30 days on the dash camera videos/audios. At the end of this period, the videos/audios self-purge (= autodestroy themselves). That is right! This evidence in cases is being set to self-destruct prior to being provided to defendants with pending criminal cases. THEN, the jury has to rely on the integrity of police officers such as the two LRPD in Dr. Thompson’s case.

    wtf?

    1. Well, sure. Because DVDs and DVD burners are just so fucking expensive.

      1. I pay $4.99/month for unlimited cloud storage from JustCloud. I’m sure similar services must exist for businesses/large organizations.

        1. I was just thinking about that. Both Google and Microsoft provide enterprise cloud options. A number of companies are moving their e-mail and at least some of their data to the cloud.

          1. Ah! But it would be far too big of an inconvenience for government agencies to move their files from obsolete systems to this “cloud” thing. And don’t forget…those are protected files of some kind. Or something to that effect…You can’t just trust them to be out there where anyone could see them. Or something to that effect…

            1. Remember, businesses have an incentive to make their operations cheaper. Government entities don’t.

              1. The security argument is a legitimate one, but I’d only buy that with personal information, and there are arguments that the enterprise clouds have better security than most government networks, anyway.

                Cost-wise, you’re right. Government doesn’t care about doing it cheaper and better.

                1. Driving the cost of government down means it’s more difficult to increase budgets later. Which is, after all, why governments exist. To serve their own interests.

                  As for security, almost every Cloud-based service I’ve seen employs standard SSL 128-bit encryption techniques. Some do even better.

                  1. My concern with the cloud is that it’s one-stop shopping for criminals. Find a way in, and you will be rewarded.

                    1. But if we’re concerned about the security of government files, that’s just as true on any other storage as it is on the cloud (I’d say more so in the former than the latter). There’s a lot to be gained by find ways in to any kind of secure system. For instance, credit card databases (already been done). Why is the cloud special in this regard?

      2. RCDean, I get the picture.

    2. Your liberty will self destruct in 3..2..1…

    3. THEN, the jury has to rely on the integrity of police officers

      BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!

  7. regardless of how improvident the Department’s retention policy may be

    Lesson for the day:

    When you destroy evidence, it’s a felony. When the police destroy evidence, it’s policy.

  8. Arkansas – Using FOIA To Piss Off Good Ole Boys Since 2007.

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