Recently, we published a summary of a bombshell front-page story by Lisa Hammersly in Friday’s Arkansas Democrat-Gazette: the bottom line is that taxpayer-funded lobbyists for our state university system appear to have misled the legislature – by complaining about a non-problem caused by the Freedom of Information Act (FOIA).
Regrettably, even though the legislature has almost passed a remedy for this non-problem into law – a remedy, SB 373, that would significantly shrink the scope of Arkansas’s FOIA – it’s a problem that, speaking objectively, doesn’t exist.
PROLOGUE: A BRIEF RECAP
Rep. Bob Ballinger sponsored SB 373 to address this issue. He described the alleged problem: attorneys who sue state government agencies and use FOIA to gain an unfair advantage in litigation – by requesting and receiving the litigation strategy documents of government attorneys. Here’s how he described this problem, according to the Democrat-Gazette:
In an interview on radio station KARN this month, Ballinger said people have abused the Freedom of Information Act for years.
“But it’s never been as bad as it is now. Now it’s happening on a regular basis that they’re abusing the FOIA process in order to get an advantage in litigation.”
Trying to “stop that advantage in litigation” is what SB 373 is about, Ballinger said.
Here’s how David Curran, Associate General Counsel at the U of A, explained the problem to the House State Agencies Committee:
“Are there real life examples of this being a problem? Attorneys within the University of Arkansas system have had opposing counsel ask for deposition notes being taken by opposing counsel during the middle of depositions. That has happened. We have had a broad request for all emails that would include emails pertaining to litigation, attorney client privileged emails during the middle of lawsuits, and we have had attorneys, opposing counsel, ask for draft briefs before they were actually filed. . . Those three things have happened as real life examples of problems.”
But here’s what the Democrat-Gazette found:
Yet, in response to requests from the Arkansas Democrat-Gazette, not UA nor Arkansas State University systems nor the highway agency could cite a single, documented case in the past two years in which their attorneys were forced under the Freedom of Information Act to hand over legal strategies and other key documents to opposing counsel.
To repeat: it appears that the legislature is on the verge of significantly shrinking the state’s Freedom of Information Act to solve a problem that doesn’t exist.
DID DAVID CURRAN LIE TO THE LEGISLATURE?
As noted above, in his testimony to the State Agencies Committee, Curran provided “real life examples of problems” – requests under FOIA for deposition notes, emails pertaining to litigation, draft briefs prior to filing, and so forth. “That has happened,” Curran noted darkly, and apparently for emphasis, he repeated: “Those three things have happened as real life examples of problems.” (And, of course, one can see how having to obey such requests might put a litigant at a severe disadvantage.)
Here’s what Curran didn’t tell the legislators: in none of those cases did the U of A actually disclose any litigation strategy documents at all. In fact, in three of those cases, three different federal judges shielded the U of A under existing law by granting protective orders. And in only one case did the U of A turn over anything – and the U of A readily concedes that the records it disgorged were entirely banal emails having nothing to do at all with litigation strategy.
How do we square Curran’s testimony about the repeated “problems” the university faced with the fact that litigation strategy documents (according to a university spokesman) were never actually disclosed? Because – just to be clear – in the real world, it typically isn’t a burden when people ask you to do things; the problem only comes about when the request has to be obeyed. It appears that the real problem, according to Curran, is that the U of A doesn’t like being asked for stuff, even if they don’t have to grant the request. According to the Democrat-Gazette, all but one of the requests Curran complained about weren’t granted at all: and, notably, there can be no litigation disadvantage at all if requests for information from opposing counsel are not responded to – because such requests never result in the production of any information. (And the U of A admitted that they chose to comply with the one remaining request, because it was wholly inconsequential to their litigation strategy.)
So, did Curran lie to the legislature? He arguably did not. Was he being misleading in his testimony? Highly. Extremely. Hilariously. It even seems possible that his statements were calculated to create a misleading impression. It is this kind of behavior that explains why the word “lawyerly” does not always have positive connotations.
And if taxpayer-funded university lobbyists – in pursuit of personal or political benefit, or just to make their jobs easier – have intentionally misled state legislators while testifying before them, I’d say that’s a real-life example of a much bigger problem.
BOB BALLINGER’S PERSPECTIVE
The Democrat-Gazette reporter tried to reach the two legislators who have spearheaded this measure – Rep. Bob Ballinger and Sen. Bart Hester. Neither could be reached for comment. But because – especially near the end of a legislative session – legislators are intermittently reachable, I thought I’d give Ballinger one more try. (I don’t think either Ballinger or Hester would dispute that Ballinger has been the prime mover of this legislation.) I wanted to see what he thought of Hammersly’s story. I texted Ballinger; he called me back; it’s fair to say that he wasn’t pleased with the story.
But when I asked Ballinger to say whether he thought that anything additional should have been included in that story, I was taken aback by the criticism he made:
It’s my understanding that the reporter had actually been provided a lot more information than what was utilized … Occasionally, the media has a bias, and in particular when it starts talking about FOI, they tend to have a very strong bias, and they tend to have their own agenda, and I think that article was a great example of the media deciding to put forth their policy position in the form of an article … They wanted to spin it as if there was essentially no FOI requests requested in the last two years, when that’s not the case – there have been. There was a couple of situations where they [government agencies] were able, because it was in federal court, be able to get a protective order to not have to actually turn over the depositions, to not have to turn over the pleadings … If that were in state court, that opportunity [for the government agency to be protected from FOIA requests] may not be there at all. And the other thing is: there was actually an instance where they [the University of Arkansas] had to turn over emails that dealt with litigation strategy, and I didn’t see that in the article at all. And that information was provided to the reporter. And the way I know that is that I actually visited with some of the people who are mentioned in the report to try to figure out what was going on, and to try to get to the information – because, obviously, the things I’ve shared, and the things I’ve heard shared, I figured they were truthful, and so I wanted to get to the bottom of it. And after visiting with them, they absolutely were truthful, and the reporter was provided that information and still didn’t share it … There actually were instances where strategy was turned over in the form of emails exchanged, because essentially there was no exemption.
Ballinger’s accusation was startling. It was in stark contrast to Hammersly’s story, which flatly stated that the U of A couldn’t name any instances at all in recent years of litigation strategy being disclosed by means of FOIA requests. If Ballinger was right to insist that litigation strategy had been disclosed, this meant that the Democrat-Gazette had gotten the story badly, utterly wrong. At this point, Ballinger volunteered to send me the emails that had previously been provided to Hammersly that would back up his criticism of her story.
WAS BALLINGER MISLED BY GOVERNMENT LOBBYISTS?
I also asked Ballinger if he thought the U of A lobbyists he was working with on FOIA matters might have misled him or other legislators.
In regards to this issue, my answer is no. And the reason is because I have the facts of the case. I wasn’t misled in any way, and the U of A and the Arkansas state system didn’t mislead anyone in any way. Now would you ask me if that article [in the Democrat-Gazette] was misleading in any way? My answer is: absolutely, yes. Because I know what facts she had, and she didn’t share the facts … It purely looks like it was spun in such a way in order to try to make it look like those instances that they mentioned [to the reporter] never happened. And that’s simply not true: they did happen, and I have specific facts to back it up. And so it’s disappointing to me that it was done that way. However, we do know that the media sometimes tends to have a slant and an opinion. In this case, when we’re talking about the FOI – the Holy Grail of the media – they’re in a position where they’re out there being champions and warriors.
HOW THE BALLINGER EMAILS UNDERMINE HIS CLAIM
Ballinger was good as his word: he immediately sent me emails of the correspondence between the Democrat-Gazette’s Hammersly and a U of A spokesman, Nate Hinkel. As discussed above, Ballinger had said these emails refuted Hammersly’s story by providing evidence of disclosure of litigation strategy documents by government agencies. But when I read the emails Ballinger passed along, I found that just the opposite was true. The U of A readily conceded that the documents it disclosed were not litigation strategy documents. The U of A, in discussing the one and only case that Ballinger cited, unambiguously stated:
The lawyers knew that the records being requested [in that case] did not include information that would provide the opposing counsel any substantive information …
Indeed, in discussing all of the specific cases presented by David Curran before the legislature, the U of A spokesman conceded:
It is correct that in those situations, our attorneys did not have to provide any information that gave the opposing counsel an unfair advantage.
What does this mean? Well, among other things, it means that Ballinger apparently believes certain things to be true – in particular, he believes intensely that FOIA is harming the litigation posture of government agencies by requiring them to disclose litigation strategy documents. He believes in this so intensely that he argues for it with great force and vigor. He believes in this so intensely that he based a controversial legislative proposal, SB 373, on it. He believes in this so intensely that he insulted the accuracy and professionalism of a journalist when she disagreed with him.
But the difficulty for Ballinger is that the things he believes so intensely are directly contradicted by the very emails he forwarded me. A less diplomatic way to put this is that, in this area, the things Ballinger believes are plainly false.
In short, both Hammersly’s story and the emails that Ballinger has supplied demonstrate that U of A bureaucrats have been complaining about a problem that doesn’t exist – and that more than a few legislators have been taken in by them.
ARE PROTECTIVE ORDERS GRANTED IN ALL COURTS?
I also asked Ballinger about whether the government could get a court order to preclude the disclosure of certain litigation records, rather than his proposed blanket exemption in the FOIA (which many have alleged will gut Arkansas’s outstanding transparency law). While Ballinger and the U of A concede that protective orders are readily available in federal court cases, the U of A has suggested that they’re not available in state court.
Ballinger is less sure, however, saying:
It’s not an area of the law that I’m versed in, but my understanding is that the protective order is provided more easily in the federal system than in the state system … I would not say it’s impossible [to get a protective order] in state court. Maybe a court would decide to grant a protective order if the facts were substantially different from the facts in the Supreme Court case. However, the Supreme Court makes it where it’s real clear that you can’t rely on getting the protective order.
According to FOIA expert and Bowen law professor Rob Steinbuch, however, a protective order is available both in federal and state court.
It’s fair for Representative Ballinger to point out differences in state and federal court. However, the State can get a protective order in either state or federal court, and in practice the two levels of courts, unsurprisingly, address the issue slightly differently. There’s Supreme Court caselaw that says that, in state court, that court has an inherent power to issue a protective order to ensure that the litigant gets a fair trial: of course, the State can only get a protective order when it’s justified, not just because it wants to hide documents. But, of course, the U of A doesn’t want to have to justify avoiding the FOIA because it might be exposed for weaving a web of false claims like they did before the legislature.
DOES THE PROBLEM OF INEFFICIENT GOVERNMENT CALL FOR THE SOLUTION OF GUTTING FOIA?
I think it’s notable that Ballinger and the U of A have now added a new arrow to the quiver: more recently, they have contended that part of the problem they want to solve is that government lawyers, when attempting to avoid the costs of disclosure, sometimes try to keep information solely in their heads and are therefore somewhat less efficient. To put it another way: this self-imposed inefficiency springs from the decision not to create records of litigation strategy that are requestable under the FOIA. This new argument – besides being quite different from (and far less compelling than) their first, now debunked, argument – doesn’t seem to me to prove very much: I think this inequity is a pretty small price to pay for government transparency. And the weight of that price must be offset by the fact that taxpayers are entitled to transparency; citizens who sue the state are literally fighting City Hall. (The opinion that the government is generally at a disadvantage in litigation is not widely held, and furthermore I’m pretty sure that I’ve never heard a conservative making this argument before.) My view is that – even if we take into account this newly alleged government frailty – the private citizen who sues the State of Arkansas is the one holding the short end of the stick. That’s especially true because the citizen has to pay both sides’ legal fees – one directly, and the other through taxation. It seems to me that there are more compelling objects of pity than the government, even when it’s a defendant.
In fairness, the fallback position of Ballinger and the U of A is worth discussing on its own merits. Again: that fallback position is that the real problem we face is that some government attorneys cannot do their jobs quite as efficiently, because they have to keep too many things in their memories and are not allowed to make records. It’s a pity that FOIA exemption advocates weren’t more honest about their concerns early in the session; this is a problem that could easily have been solved with an uncontroversial, one-sentence exemption to the FOIA that consists of a litigation strategy exemption for lawyer-generated records which aren’t shared with non-lawyer staff. But the shifting position of FOIA exemption advocates – and their willingness to manufacture problems which demonstrably don’t exist – suggests that, in fact, the long-term evisceration of Arkansas’s FOIA is their real goal. For that reason, those who genuinely support transparency in government should continue to resist the broad FOIA exemptions, such as SB 373, that our taxpayer-funded bureaucrats continue to advocate.
Updated: We have noticed a complaint on Facebook that Rep. Ballinger was not a sponsor of this bill. Rather, he helped amend it three times and pushed it through the House.