603 S.W.3d 557
Ark. Ct. App.2020Background
- Appellant Ben Motal was involved in a hit-and-run and went to the Little Rock Police Department to inspect and "copy" the accident report by photographing it with his personal cell phone.
- A City employee allowed him to view the report but enforced a city policy forbidding on-site photographs; she offered to provide an official copy for a $10 fee, which Motal refused.
- Motal filed a pro se FOIA suit seeking an order that he be permitted to copy the report with his phone and for attorneys’ fees; the parties stipulated that the factual allegations were undisputed.
- The circuit court granted the City’s Rule 12(b)(6) motion, concluding FOIA’s use of the word "copy" did not include photographing records and that the case was moot because Motal had since received an electronic copy.
- The Court of Appeals held the mootness doctrine’s substantial-public-interest exception applied and reviewed de novo whether FOIA’s term "copy" includes a citizen’s taking a digital photograph; it reversed and remanded, holding "copy" includes photographing a public record.
Issues
| Issue | Motal (Plaintiff) | City (Defendant) | Held |
|---|---|---|---|
| Mootness: whether receiving an electronic copy after suit moots the case | Not moot: independent right to "copy" and public interest; wants verification and future guidance | Moot: delivery of the report moots controversy | Case falls within the substantial-public-interest exception; appellate court addresses merits |
| Statutory scope: does FOIA’s term "copy" include taking a photograph with a cell phone? | "Copy" includes creating a digital image; photography is a form of copying/inspection | "Copy" means traditional copying (photocopy/scan/fax); photography is different and may be altered | "Copy" should be liberally read to include photographing a record with a personal device; citizens may make their own copies |
| Fee requirement: must requester pay the $10 statutory fee before making a personal photograph copy? | Not raised as operative fact below; appellant alleged a blanket prohibition, not conditional fee rule | Argues the $10 fee (Ark. Code § 27-53-210) governs accident-report copies and must be paid | Court declined to decide; left for another day (fee issue not resolved here) |
| Custodian screening/exemption concern: may the custodian ban photos to prevent disclosure of exempt material? | Custodian can screen and still allow copy, or require requester to wait per statutory process | Blanket photography ban justified to prevent circumvention of pre-copy exemption review | Rejected: custodian’s statutory screening duties occur upon receipt of request and can be done before allowing copying; blanket prohibition unreasonable as applied here |
Key Cases Cited
- Stilley v. McBride, 332 Ark. 306 (Ark. 1998) (applied substantial-public-interest exception to mootness in FOIA context)
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 371 Ark. 217 (Ark. 2007) (standard of review for FOIA cases and appellate review principles)
- Thomas v. Hall, 2012 Ark. 66 (Ark. 2012) (statutory-construction rules and guidance that AG opinions may inform FOIA interpretation)
- Moore v. State, 324 Ark. 453 (Ark. 1996) (usage of "photocopy" terminology in FOIA-related context)
- Hyman v. Sadler, 521 S.W.3d 167 (Ark. Ct. App. 2017) (discussed mootness and substantial-public-interest application in FOIA requests)
- Protect Fayetteville v. City of Fayetteville, 566 S.W.3d 105 (Ark. 2019) (application of mootness exceptions where public guidance was needed)
- Ledgerwood v. Ark. Dep’t of Human Servs., 571 S.W.3d 1 (Ark. 2019) (cautionary treatment of mootness exceptions)