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Secretary of State partially responds to FOIA action

story by Ryan Saylor
rsaylor@thecitywire.com

A Freedom of Information Act request filed with Secretary of State Mark Martin's office on June 2 has partially been fulfilled, but not before a lawsuit was filed to compel Martin's office to turn over the documents in electronic format.

The suit, filed on July 1 by attorney and liberal blogger Matt Campbell of the Blue Hog Report, sought a court order to force Martin's office to turn over documents related to another lawsuit by two former State Capitol police officers, who claim to have been wrongfully terminated from their positions. The former officers have also made claims of racial discrimination in the suits against Martin's office.

The documents were requested in electronic format, though Martin's press secretary, Alex Reed, has attempted to provide some of the documents in physical form.

Campbell said when he filed the suit that there was "no provision of the AFOIA that allows a custodian of records to require a citizen to accept public records in a medium of the custodian's choosing."

In an e-mail to The City Wire, Campbell said he received some of the documents he requested on July 8.

"Last Monday, I received a letter for his (Martin's) newly hired attorneys that included a flash drive that had 5 of the requested Word docs. Unredacted."

The issue of redaction was a contentious issue in Campbell's lawsuit against Martin, as Reed had told Campbell that he would be happy to "print them (the requested documents) and redact them," according to the lawsuit.

"Basically, they turned over things that they'd sworn up and down for weeks had either been deleted or had to be redacted and printed," Campbell said by e-mail. "They lied/stalled until I finally sued, then they were all, 'Oh, here you go!'"

While Martin's attorneys – Quattlebaum, Grooms, Tull & Burrow – have turned over five Word documents in electronic format, there are still .PDF files that have yet to be turned over.

In the letter attached to the flash drive containing the Word documents, attorney Chad Pekron told Campbell that the remaining files would not be available in electronic format.

"With respect to the remaining issues in your lawsuit, the records …attached to the electronic mail message from Ms. Hoggard to Mr. Hedden dated October 28, 2012, contain personnel information that is not subject to FOIA and/or that the Secretary of State concludes would constitute clear unwarranted invasions of personal privacy if disclosed," he said. "Despite this, the Secretary of State offered to provide redacted records to you, pursuant to Arkansas Code Annotated § 25-19-105(f), in hard copy form. I understand that you rejected this offer and demanded the records be provided to you in its native form. The Secretary of State, however, cannot redact the exempt information electronically from the existing records without creating new records to do not exist currently. As you know, a custodian of records is not under an obligation to create new records in response to FOIA."

Campbell disputed Pekron's claim, saying, "They are standing by this absurd argument that redacting a PDF and saving it in electronic form is somehow 'creating a new record,' which they aren't required to do."

In addition to the five Word documents that have been turned over, Campbell is still seeking three PDF documents and one Word document, though he said he would be willing to drop the lawsuit should Martin agree to certain terms.

"I responded to their letter with an offer to settle the whole thing in exchange for about $191 (filing fees plus postage that I've spent), plus a signed letter from Mark Martin admitting that the Word docs were subject to disclosure from the outset and that his office had no substantial justification for not providing them.

"Not surprisingly, I haven't heard anything from them on that offer."

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Reed said by e-mail that he had not yet heard about Campbell's settlement offer.

"The settlements are up to the lawyers.  I do not know anything about it. You must have a good source."

An amended lawsuit seeking the additional four documents has been filed in Pulaski County Circuit Court.

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