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_________ DIVISION
MATTHEW CAMPBELL
v.
PLAINTIFF
Case No. 60CV-15-_________
DEFENDANTS
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. 2519-107(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
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privacy must yield to openness and secrecy to the publics 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. 2519-105 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
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Schwartz,
requesting
All
emails
regarding
Robert
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17. Plaintiff responded to Defendant Maxey at 12:33 p.m., explaining that Maxeys
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 someones 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 Maxeys 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
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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 Maxeys 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.
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