Case Information
ARKANSAS COURT OF APPEALS DIVISION IV
No. CV-16-1023
WILLIAM WHITFIELD HYMAN O PINION D ELIVERED : M AY 10, APPELLANT
APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, NINTH DIVISION BILL SADLER, IN HIS OFFICAL [NO. 60CV-16-4681] CAPACITY AS PUBLIC INFORMATION OFFICER FOR THE ARKANSAS STATE HONORABLE MARY SPENCER POLICE, AND THE ARKANSAS STATE MCGOWAN, JUDGE POLICE, DIRECTOR, COLONEL BILL BRYANT AFFIRMED
APPELLEES
ROBERT J. GLADWIN, Judge Aрpellant William Whitfield Hyman, an attorney, filed a complaint in the Pulaski County Circuit Court under the Arkansas Freedom of Information Act (FOIA), codified at Arkansas Code Annotated sections 25-19-101 to -110 (Repl. 2014 & Supp. 2015), to compel apрellees Bill Sadler, public information officer for the Arkansas State Police, and the Arkansas State Police, Director Colonel Bill Bryant (collectively referred to as the ASP), to respond to his request for records, which included dash-cam surveillance video of Nathan Alexander Earp’s arrest for DWI. Hyman had requested the material on Earp to aid in his representation of Earp at his driver control hearing. By order filed September 1, 2016, the trial court dismissed the complaint as moot because Hyman had received all the material he had requested. On appeal, Hyman argues that the trial court erred when it found that (1)
his complaint was moot; (2) the ASP rightly dеnied his request because of an undisclosed investigation; (3) the statutory three-day period to respond did not apply to Hyman’s first FOIA request; and (4) Hyman was not a prevailing party for purposes of an award for attorney’s fеes by the Arkansas Claims Commission. We affirm the trial court’s determination that the issue was moot.
On July 15, 2016, Hyman emailed Sadler and made the following FOIA request to the Arkansas State Police:
1. Surveillance footage and audio from any building оr vehicle (particularly the detention center, patrol vehicle, and transport station) of Nathan Alexander Earp and his related DWI charge on or about June 26, 2016, that may have recorded Nathan Earp.
2. Phonе calls, dispatch audio recordings, and CAD logs at the time of the arrest. 3. Any police reports, narratives, or statements about the arrest, including narratives.
. . . .
5. Any results or findings of a blood draw.
After Hyman sent an August 16, 2016 email to Sadler that noted the July 15, 2016 FOIA request, Sadler responded by email that he had received the request for records “associated with an open investigation relating to Nathan Alexander Earp.” Sadler opined that any video that existed documenting the alleged driving violation or arrest was exempt pursuant to Arkansas Code Annotated section 25-19-105(b)(6) (undisclosed-investigation exemption). [1] He further advised that the evidentiary records sought might be obtained through the litigation and discovery process.
Hyman responded that the case was “closed by arrest” and was “not an open investigation.” He threatened that if the ASP did not comply with his FOIA request, he “might be forced to file a civil suit to force [its] participation.” Sadler responded, “Please contact the prosecuting attorney and request a subpoena or order and we will comply with the records we may have.”
Hyman filed a FOIA complaint against the ASP on August 22, 2016, and claimed that ASP had refused to provide the videos and communications he had requested. He claimed that the undisclosed-investigations exception did not apply because Earp’s DWI investigation was closed by citation on June 26, 2016, and there was no other suspected passenger in the vehicle. He alleged in his complaint that the videos he sought would not constitute an undisclosed or ongoing investigation.
A hearing was held on August 30, 2016, and Hyman testified that he had made a FOIA request via email to the ASP. He said he did not get a response from Sadler, so he sent him another email. He said that Sadler complied with some of it at that time, but specifically denied the request for videо under the undisclosed-investigation exemption. Hyman stated that he believed the exemption did not apply because Earp had been “cited.” He said that he made another request for the information that was denied, so he filed his (b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter: . . .
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity . . . .
Ark. Code Ann. § (a)(1)(A), (b)(6). complaint in circuit court. He further testified that the ASP’s response on August 23, 2016, was in violation of FOIA because it was given over a month after the first request had been made. He added that after he had filed his complaint in circuit court, Earp pled guilty on August 22, 2016.
Sadler testified that he did not see the email request dated July 15, 2016, because he had been in Rison, Arkansas, on that date preparing for his mother’s funeral. He sаid that he saw the substantially similar email dated a month later, and the ASP responded to Hyman’s request but denied portions of it. He also said that Earp pled guilty on August 22, 2016, and the ASP provided the records requested by Hyman on August 23, 2016, because the ongoing-investigation exemption no longer applied.
After the testimony that the records requested pursuant to FOIA had been provided, the trial court asked, “Why are we here?” Hyman responded, “Well, your Honor, in order fоr me to recover attorney’s fees, I have to substantially prevail.” He explained that he would have to request attorney’s fees through the Arkansas Claims Commission. He also stated that he did not think the issue was moot because of the public interest involved.
The ASP responded that the issue was moot because the requested records had been provided. The ASP explained that, after the lawsuit was filed, Earp pled guilty, which was an intervening aсt; and because the exemption no longer applied, the records were immediately provided. The trial court ruled that the issue was moot and that Hyman was not a prevailing party for purposes of his attorney’s-fee claim, and an order to that effect was filed on September 1, 2016. Hyman brings this appeal.
This court liberally interprets the FOIA to accomplish its broad and laudable purpose
that public business be performed in аn open and pubic manner.
Nabholz Constr. Corp. v.
Contractors for Pub. Prot. Ass’n
,
In a FOIA case, the standard of review is whether the trial court’s findings were
clearly erroneous or clearly against the preponderance of the evidence.
Pulaski Cty. v. Ark.
Democrat-Gazette, Inc.
,
We have held that for a record to be subject to the FOIA and available to the public,
it must (1) be possessed by an entity covered by the Act, (2) fall within the Act’s definition
of a public record, and (3) not be exemрted by the Act or other statutes.
Hopkins v. City of
Brinkley
,
It is a well-settled rule that this court does not render advisory opinions or answer academic questions. Stilley v. McBride , 332 Ark. 306, 965 S.W.2d 125 (1998). Under Arkansas law, a case becomes moot when any judgment rendered would have nо practical effect on an existing legal controversy. Id . However, when the case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, the Arkansas Supreme Court has, with some regularity, refused to
permit mootness to become the determinant.
Id
. (citing
Campbell v. State
,
This case turns on the answer to Hyman’s first point on appeal—whether the trial
court erred when it ruled that Hyman’s FOIA complaint was moot. He cites
Stilley
,
supra
,
and contends that the ASP’s handling of his request was a matter of public interest. He
argues that in
Stilley
, an attornеy requested information from the City of Fort Smith on two
police officers who were named in a section 1983 lawsuit.
Stilley
,
was a clearly unwarranted invasion of personal privacy.
Id
. at 309–10,
Hyman contends that the important similarity between his case and Stilley is that the information sought under FOIA had been provided by the time of trial. Hyman contends that the public interest in his case is that “every FOIA reciрient could deny every FOIA request, and then acquiesce the day after a lawsuit is filed to render the suit moot.” We agree with ASP’s contention that the record in this case establishes that ASP had an ongoing criminal investigation regarding Earp’s DWI arrest, then considered the investigation closed when Earp entered a guilty plea. It was not clearly erroneous for the trial court to conclude that this intervening event was unrelated to Hyman’s FOIA request or his lawsuit. When ASP learned of Earp’s plea, it promptly disclosed the requested video. There was no evidence that ASP acquiesced to Hyman’s request in order to render the lawsuit moot. Further, Hyman has not articulated a viable thеory under which this case presents issues of substantial public interest that justify rendering an advisory opinion. In Stilley , the Arkansas Supreme Court engaged in a lengthy discussion regarding the balance between an officer’s personal-privаcy rights and the public interest in disclosure of information in officers’ personnel files. Stilley , supra . The court’s reasoning in finding an exception to the mootness doctrine in Stilley does not apply here. The purpose of Hyman’s request for the dash-cam video of Earp’s arrest was not to evaluate the performance of public officials but to aid him in his representation of Earp at a driver control hearing.
In his reply brief, Hyman cites
Whalen v. State
,
Affirmed.
G RUBER , C.J., and V AUGHT , J., agree.
King Law Group PLLC , by: William Whitfield Hyman , pro se appellant.
Leslie Rutledge , Att’y Gen., by: Colin R. Jorgensen , Sr. Ass’t Att’y Gen., for appellee.
Notes
[1] (a)(1)(A) Except as оtherwise specifically provided by this section or by laws specifically enacted to provide otherwise, 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.