Tom Carpenter: When in a Hole, Stop Digging!

There's an old saying:  when in a hole, stop digging.  Tom Carpenter apparently hasn't gotten the memo.  He's gone and appealed his embarrassing loss in the Court of Appeals in the Ben Motal case.  

Remember that attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA).  The police bureau-hack Motal encountered refused to allow him to copy the report by taking a photograph using his cell phone. Motal sued. 

The City argued that a photograph is not a "copy." The trial court judge, Mackie Pierce, agreed. First, Pierce said that the word "copy" doesn't include "photograph" but somehow does include "facsimile." Second, Pierce contended that a photograph can be Photoshopped but a copy-machine reproduction cannot be easily altered -- all without ever having the required hearing to take evidence on the matter.  In other words, he just made it up.

Pierce also dismissed the case because the City relented after being sued and provided the records directly to Motal (without any need to photograph or otherwise copy them). If this tactic were permitted, then only those who can afford attorneys would have rights, because they could sue.  If you're a regular Joe, you wouldn't have any rights, because there wouldn't be any precedent to protect you when the City repeated the same bad thing it did to Motal.  

Luckily, all but one of the judges on the Court of Appeals said that "copy" means, well, "copy"!  Indeed, the Court of Appeals, in an excellent opinion written by Judge Kenneth Hixson, cites to my co-authored book on the FOIA, which addressed this very point, to hold that, yes, a photograph is a copy.  Indeed, modern copiers are cameras.  The Appellate court rejected all of the City's arguments.

Guess what, Carpenter has just appealed -- rehashing his losing arguments before the Court of Appeals.  He contends that the "Court of Appeals fails to give 'copy' its plain and ordinary meaning as usually accepted in common language. Copy and photograph are not used interchangeably in common language."  Uh, yes they are.  Carpenter just presents more double speak from bureau-hacks.

Then, Carpenter pretends that there was a hearing on whether it is easier to edit a photograph or a photocopy and asserts that the trial court's conclusion based on that non-existent hearing is entitled to deference.  Here's the thing:  there was no hearing.  And Carpenter knows this, as the City litigated this case!  The trial judge just made up the "facts" regarding the ease of editing.  Of course, that's never entitled to appellate deference. 

Thereafter, Carpenter makes an indecipherable argument regarding why the Court made a ruling on the meaning of "copy" that wasn't somehow restricted to accident reports.  I guess that Carpenter fears that the Appellate Court's ruling would prevent him from trying his same nonsensical arguments for requests of other public records.

Finally, Carpenter yet again turns plain statutory language on its head.  He argues that the $10 fee that is designed to “partially reimburse” the agency for the costs associated with “making copies” of motor vehicle accident reports means that some portion of that fee is intended to compensate the police for their time to write or make the report.  Wait, what?  Where did he get that?  Well, he likely got it from the same place he got his other arguments:  thin air.

Let's dig a little deeper on this last point.  Carpenter argues that the law limiting what the City can charge a citizen for a copy (rather than making his own copy on his phone) -- even if it costs more (hence, "partial reimbursement") -- actually means the opposite!  Carpenter believes -- well, he argues -- that the actual copying costs are always some random amount less than $10 and the undefined residue is designed to pay the City for preparing the report that it already prepared (and was already paid for by your tax dollars).  In reality, the law only allows for a $10 charge even though the cost might be more; hence "partial reimbursement."  Don't be surprised, though; this is the same guy that says "copy" doesn't mean "photograph."

This kind of logic is why many folks don't trust attorneys.

Mayor Scott, You Should Send Your City Attorney a Note on Transparency

Today, Little Rock Mayor Frank Scott, Jr. sent an email to constituents announcing that he's setting up an independent review to investigate the Little Rock Police Department, given the ongoing parade of horribles coming from his handpicked Commissioner.  

The most recent allegation is that the Commissioner bullied senior officers who wouldn't back the Commissioner's vendetta against Police Officer Charles Starks.  (Nevermind that the Mayor seems to have been fueling the Commissioner's run-away-train "management" style when it came to the Starks affair.)

In his email, the Mayor -- who says he's consulted with the City Attorney, Tom Carpenter, in deciding to set up his independent review -- announced:  "Since taking office, we have been committed to our ACT Plan – remaining Accountable, Clear, and Transparent as we govern."  Wait, what?  Transparent?  Have you been reading Arkansas Impact: Law & Politics?

Mayor Scott, you are aware that Tom Carpenter defended the City's refusal to allow Ben Motal to copy a public police report by taking a photograph using his cell phone?  Is that transparent?

Mayor Scott, you are aware that Tom Carpenter argued that a citizen is only allowed to do one of the following:  inspect, or copy, or receive a government record but not the remaining two?  Thus, for example, if a citizen inspects a public record, then he can't copy it or receive it -- according to Carpenter.  Say what?  What happens if a citizen receives a copy of a public record and then inspects that copy?  I guess -- according to Carpenter -- the citizen has violated the law.

Mayor Scott, you are aware that (1) the Court of Appeals, in an excellent opinion written by Judge Kenneth Hixson, which cites to my co-authored book on the FOIA, rejected Tom Carpenter's arguments, and (2) Tom Carpenter says he intends to appeal the the Court of Appeals' decision, wasting even more tax payer dollars, while simultaneously pursuing an anti-transparency agenda?  

Mayor Scott, if you want to pursue your "ACT Plan" of remaining Accountable, Clear, and Transparent, you might want to alert your City attorney.  I'm not sure he got the message.

Hope to See You in Court, Tom Carpenter

In yesterday's post, I discussed the vacuousness of the City of Little Rock's argument that using a phone to copy a public record isn't permitted by the Arkansas Freedom of Information Act (FOIA).  The Court of Appeals aptly held that phone copies are indeed copies that are covered by the FOIA.  The Court cited to my co-authored treatise, the Arkansas FOIA, on this very point.

In learning about the case months ago, I filed for amicus status with the Court of Appeals to argue in favor of plaintiff Ben Motal's well justified position.  The Court canceled arguments due to the pandemic.  As such, my motion was moot, and, alas, I didn't get to say in open court how ridiculous the City's position has been from the outset.  The City's argument is not only contrary to the plain language of the statute, it's wholly inconsistent with the legislatively provided interpretive guidance written into the law itself:  The FOIA is to be interpreted broadly to give full effect to citizens' right to transparent government.

But on a twist of the maxim that fortune favors the bold, Tom Carpenter has decided to boldly go where no man has gone before:  to the Arkansas Supreme Court seeking to overturn a near unanimous decision of the Court of Appeals properly interpreting a simple, yet important, provision of the FOIA.  Tom's good fortune is that there is some chance that he'll see me arguing against his position in court, as I'll again file my amicus request, this time to argue in favor of the Court of Appeals well reasoned opinion. 

And, Tom, I'll gladly buy you a steak at Doe's Steakhouse, near City Hall, if you win in the Supreme Court.  I think my wallet will be safe, though. 

The real tragedy, however, is that while my streak-buying money isn't going anywhere, my tax dollars, and those of all Little Rockers (is that right?), are being further wasted by bureau-hacks more interested in interfering with open and good government than serving the public who pay their often bloated salaries.  But what does Tom Carpenter care?  After all, it's not his money that he's burning.  It's yours. 

Kudos to Ark. Court of Appeals on FOIA Opinion...MOSTLY!

Attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA).  The police bureau-hack Motal encountered refused to allow him to copy the report by taking a photograph using his cell phone. He sued. 

Good!

In response, the City filed a motion to dismiss, arguing that a citizen must choose to either inspect, copy, or receive a government record -- notwithstanding the metaphysical impossibility of this specious defense.  How can you copy a record without at least somewhat inspecting it --  with your eyes closed?  To quote Joe Biden:  C'mon man!

The City also argued that a photograph is not a "copy."  Wow!

Remarkably, the trial court judge, Mackie Pierce, agreed.  He said that a "if the Legislature wanted to give you the right to photograph public records, they could have easily used the word 'photograph.'  They didn’t.  They used 'copy' and 'copying.'  And when I think of a 'copy,' I think of running it through either a photocopying machine or a facsimile machine....  But a photograph is an entirely different animal.  A photograph can be Photoshopped®, it can be altered...."  

Wow again!  Where to start?

First, Pierce says that the word "copy" doesn't include "photograph" but does include "facsimile."  Where did he get that from?  Nowhere, because that distinction is entirely fabricated.  Moreover, the legislature's job is not to provide a list of 87 action verbs every time it writes a statute.  The legislature writes, hopefully, in plain English, and the courts' job is to reasonably interpret those words.  Indeed, that's why Daniel Webster wrote his first dictionary.  The reasonable interpretation of "copy" is not only through using "photo"copying and facsimile machines, as Pierce contends, it also includes photographing through a phone.

Second, Pierce contends that a photograph can be Photoshopped but a copy machine document cannot be easily altered.  In addition to simply being wrong, where's Pierce's evidence for that farcical claim?  Answer:  The City said it, and the judge parroted it.  

No trial took place in the Motal case.  Mackie didn't allow it.  Yet, he essentially made a finding of fact as to the alter-ability (is that a word?) of a photograph versus a document, which can only be done (barring inapplicable exceptions) after evidence is submitted at a trial that never took place. 

Moreover, as anyone who has ever used White-Out knows, copies made on paper photocopiers are easier to alter than copies made with high-resolution cameras.  The latter have too much detail to easily alter. 

Pierce also dismissed the case because the City relented after being sued and provided the records directly to Motal (without any need to photograph or otherwise copy them).  

We see this all the time:  Effectively, only attorneys and those who can afford attorneys have rights, because they can sue.  If you're a regular Joe, you don't have any rights, says the City and the judge, because they've orchestrated it that there's no precedent to protect you when the City repeats the same bad thing they did to Motal.  So, the City could "copy" its shenanigans over and over.  (Yes, shenanigans!)

"Hold on," said the Court of Appeals, correctly!  All but one of the judges on the Court of Appeals said that "copy" means, well, "copy"!  Indeed, the Court of Appeals, in an excellent opinion written by Judge Kenneth Hixson, cites to my co-authored book on the FOIA, which addressed this very point, to hold that, yes, a photograph is a copy.  What more could you ask for?  (Btw, if Motal used a "scan" app on his phone, then it wouldn't be a photograph, it would be a scan.  That's the same as Pierce's "photocopy" or "facsimile," isn't it?  This further demonstrates the sophistry of Pierce's argument.)

The linguistic gymnastics proffered by the City, and parroted by Pierce, makes a joke of the rights that Arkansas are entitled to.  I guarantee that no legislator who wrote the FOIA would've ever dreamt up such a convoluted interpretation of the law.  An interpretation, no less, that properly causes citizens not to trust the legal system. 

Further, the Court of Appeals said that the City can't avoid review of their anti-transparency efforts by complying with the law only after they get sued.  Amen!  Chris Corbitt and I made this argument to the Supreme Court when Judge Tim Fox botched a FOIA case also.  We sued and settled the records request but sought review of Fox's dramatically wrong order.  Chief Justice Dan Kemp ignored us.

Unfortunately, in the Motal case, there was one dissent, from Judge Raymond Abramson.  This has no effect on the outcome, but it's a little disappointing nonetheless.

Abramson adopted the flaccid argument of the City, like Pierce did, that photographing is not a type of copying.  Abramson said that the legislature or the Supreme Court should address whether the legislature intended to include photographing as as a means of copying.  This is wrong on two fronts.

First, as discussed, the legislature needn't list every synonym for "copy" in a statute.  That's exactly the mandate of any court -- to decide what's reasonably included in the meaning of "copying."  

Second, Abramson punts the question to either the legislature or the Supreme Court.  Huh?  Either the issue is a legislative one or a judicial one, not both.  Moreover, how could the issue be judicial yet somehow exclude the Court of Appeals from needing to address it?  The Court of Appeals can decide every bit of a FOIA-interpretation case as can the Supreme Court.  It's time for (some) judges to stop trying to shift their responsibilities to someone else.  If you seek to get elected a judge, you should also be willing to do the work. 

Welcome to Arkansas Impact

Chris Corbitt and I will discussing topics important to Arkansans here.  Stay tuned.

Welcome

Welcome to a new blog called Arkansas Impact.

We will be exploring hot topics that affect everyday life of Arkansans.

Please check back for our first story.

Chris