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.