Jack Nelson Jones Professional Association
November 20-26, 2017
Holladay v. Glass, 2017 Ark. App. 595 (November 8, 2017)
This appeal comes from the Pulaski County Circuit Court, Fifth Division, honorable Wendell Griffen presiding. This case concerns the “undisclosed investigation” exemption to a request made under the Arkansas Freedom of Information Act (FOIA).
On December 7, 2015, Johnnie Lee Phillips attempted to escape while being transported with other inmates and pretrial detainees from the Pulaski County Courthouse to the Pulaski County Regional Detention Facility. On December 10, Bessie Glass, who is Phillips’s aunt, requested a copy of the “trip sheet,” or transportation manifest, which listed the passengers on the transport vehicle. On December 16, Sergeant Lesa Warner explained via email that the manifest was exempt under Arkansas Law, Code section 25-19-105(b)(6); the statute exempts from disclosure under the FOIA “undisclosed investigations by law enforcement agencies of suspected criminal activities.”
On December 29, Glass filed a complaint against Pulaski County Sheriff Doc Holladay and Lesa Warner, alleging a violation of the FOIA and requesting that Holladay be ordered to provide the manifest. Holladay responded by requesting the court dismiss the action, arguing that the complaint failed to state facts upon which relief could be granted. The court found that the manifest was not subject to the “undisclosed investigations” exception, citing Hengel v. Pine Bluff. In Hengel, the Arkansas Supreme Court held that jail logs, arrest records, and shift sheets were not sufficiently investigatory in nature to fit within the exception to public disclosure. The opinion indicated that subsection (b)(6) was meant to exempt only “internal ‘work product’ materials containing details of an investigation.”
In the present case, the circuit court found that the manifest was “simply a log, a list of names, dates, locations, and times. The nature of the manifest is clearly non-investigative; it is not internal work product material, and does not contain details of any investigation.” At a hearing on October 21, 2016, the circuit court reiterated that the manifest was not subject to the “undisclosed investigations” exception and that Hengel was controlling. Holladay acknowledged that on “most routine days” the manifest would be subject to disclosure under the FOIA but argued that in this case the trip sheet contained an exclusive list of all individuals who were witnesses to the escape and/or suspects in the assistance of the escape. Holladay asserted that the list was being used in an investigation of possible accomplices and was therefore investigatory in nature. The court disagreed and stated, “[I]f Hengel is to have any weight at all, it has to be controlling on the issue of whether or not a jail log, arrest record[,] and shift sheet are investigatory in nature.”
According to the circuit court there “was an investigation” and trip sheet could be put in the investigation, but putting the trip sheet in the investigation did not transform the nature of the trip sheet. “There happened to be an escape,” the circuit court stated, but the fact that there was an escape did not define the nature of the information of who was on the vehicle and that’s all the trip sheet was. The court found that Holladay’s failure to disclose the manifest was not substantially justified. The court’s written order found that the manifest did not fall within the “undisclosed investigations” exception. Holladay appealed.
On appeal, the Court explained that the issue of the applicability of the FOIA is a question of statutory interpretation. The FOIA, as set forth in Arkansas Code Annotated section 25-19-105(a)(1)(A), provides: “Except as otherwise specifically provided,” all public records are open to inspection and copying by any Arkansas citizen. The FOIA then specifically provides that “[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity” are exempt from disclosure under the FOIA.
Holladay argued that the circuit court erred in finding that Hengel controlled and in “failing to read Hengel in the context of the later case of Johninson v. Stodola.” In that case, Johninson was charged with first-degree murder, and his attorney made a FOIA request for access to the prosecutor’s files on gang membership. Without reviewing the files in chambers, as requested by counsel, the circuit court denied the request on the basis that the files were exempt as an undisclosed investigation by a law enforcement agency of suspected criminal activity. In Johninson, the Arkansas Supreme Court noted that “investigatory records” are those dealing with the detection of crime and that an “undisclosed investigation” includes those that are open and ongoing. However, the supreme court concluded that the circuit court must review the relevant files in chambers to determine whether the exemption applies, so it remanded the case without deciding the applicability of the exemption.
According to Holladay, Johninson stood for the proposition that it is incumbent upon the trial court to review the relevant information for whether the release of that information would in any way impair or frustrate an ongoing investigation. And, in this case, the manifest was “crucial to an ongoing investigation of Johnnie Phillips’s escape,” so the “undisclosed investigations” exemption applied. The Court, however, held that Hengel was controlling and that the manifest at issue in this case was simply a record kept in the regular course of business and was not investigatory in nature such that the exemption would apply. Contrary to Holladay’s argument, the Court saw nothing in Johninson that would change that analysis. Therefore the Court affirmed the circuit court’s ruling. Affirmed.