School district skirts FOIA by referring requests to lawyer
By Roy Ockert Jr.
Aug. 16, 2015
The Buffalo Island Central School District’s administration is shirking its responsibilities by referring all requests from a district patron under the Arkansas Freedom of Information Act directly to an attorney. There is no provision in the law for such a diversion.
FOIA says specifically that “all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.”
Further, it says, “A citizen may make a request to the custodian to inspect, copy or receive copies of public records” and that such a request can be made in various ways, including in person, by mail, by facsimile reproduction, by electronic mail or by other electronic means provided by the custodian.
The custodian of the records is certainly free to consult with an attorney about whether the records requested should be released. But the law doesn’t say the custodian can “farm out” responsibilities for fielding and answering FOIA requests.
If there is any question about whether the records are subject to public disclosure, the custodian “shall determine within 24 hours of the receipt of the request” whether the records are exempt. That’s the time period allowed for consulting an attorney.
Another provision applies when a public record is “in active use or storage and therefore not available at the time the citizen asks to examine it.” In such case the custodian is required to set a date and time within three working days for the record to be made available. But that has nothing to do with legal questions about disclosure.
A previous administration at Arkansas State University for a time adopted such a process, requiring all requests to go through its in-house counsel, but succeeding administrators wisely abandoned it.
The BIC problem stems from a series of FOIA requests made by Monette resident John Steele about the district’s property tax structure and proposals to increase the tax rate. Two proposals over the past year to raise the rate have failed to win voter approval, and a modified proposal has been set for a special election in January.
Steele’s sister, Pat Qualls, told the board in July that he had made 12 requests under FOIA since 2014 in an effort to “gather factual information so the BIC patrons can made an educated decision .”
At some point the BIC administration decided that Steele’s methods of requesting information were improper. A July 8 letter from the district’s attorney, Donn Mixon, told Steele that he had engaged in threatening and harassing behavior that could not be tolerated by the BIC district and therefore he would be banned from all campuses and from contacting employees of the district. The letter also said his behavior had been reported to law enforcement officials.
Mixon advised Steele to send any further FOIA requests to his office in Jonesboro.
After that Qualls and Ruth Cullum, another sister, went to both July and August BIC board meetings to speak in his behalf. He couldn’t attend because they are held on campus.
In Monday’s board meeting Superintendent Gaylon Taylor said, “We have hired Donn Mixon to represent us, and it is up to him to respond or not respond to Steele’s request.” He said he couldn’t discuss it further in public.
There is, by the way, no FOIA provision allowing a custodian of public records not to respond to requests from an Arkansas citizen. Whatever Steele might have done that constituted “threatening and harassing behavior” has not yet resulted in criminal or civil action. Therefore, he is still an Arkansas citizen with the right to request a public record from the custodian of that record.
Whether anyone has the right to ban him from the BIC campuses or prohibit him from speaking to anyone is another legal question. Unless he did something that hasn’t been disclosed, I doubt it.
Between July 10 and 14 Steele apparently then made at least three FOIA requests to Mixon, including two seeking electronic documentation of his “threatening and harassing behavior.”
Mixon, who is a fine attorney well-versed in the Arkansas FOIA, said he had informed Steele there were no written documents related to the harassment, only verbal accounts from employees. However, Mixon admitted that the third request, for a copy of the district’s June budget report and minutes of the July 13 school board meeting, had apparently been lost. Steele renewed that request on July 23. Mixon said Thursday the minutes are not available until they have been approved at the following month’s board meeting, held Monday, and that he was preparing to send both documents to Steele.
Even accepting all that, the FOIA time limits for complying with a request have been violated. And there is no question about either document being subject to disclosure.
The BIC board needs to straighten out this situation, the sooner the better. If a citizen has done something that should cause him to be deprived of his rights, formal action should be taken that allows him due process of law. Otherwise, the board should instruct the administration to comply with the law.
The district already has a credibility gap with its patrons, or two proposed increases within one year wouldn’t have been rejected by more than 55 percent of those voting. This controversy certainly doesn’t help, and it gets in the way of educating BIC children.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.