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.
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