Cite as 2016 Ark. App. 132
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-520
Opinion Delivered March 2, 2016
TIMOTHY HOLLIS APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. CV-13-956-7]
V.
HONORABLE DOUG MARTIN,
FAYETTEVILLE SCHOOL DISTRICT JUDGE
NO. 1 OF WASHINGTON COUNTY,
ARKANSAS; TIM HUDSON; JIM
HALSELL; BRYN BAGWELL; JUSTIN
EICHMANN; TRACI FARRAH;
SUSAN HEIL; STEVE PERCIVAL; REVERSED AND DISMISSED
VICKI THOMAS; and STEVE JACOBY
APPELLEES
RAYMOND R. ABRAMSON, Judge
This case is a companion to Hollis v. Fayetteville School District, 2016 Ark. App. 137
(Hollis III), also decided today. These two appeals arise out of appellant Timothy Hollis’s
Freedom of Information Act (the FOIA) requests made to appellee Fayetteville School
District (collectively with its superintendent and individual board members, the district). In
this case, the circuit court found that Hollis’s FOIA requests were not specific enough to
allow the district to locate the requested records with reasonable effort. As a result of this
finding, the circuit court granted the district’s renewed motion for a protective order. This
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appeal challenges both rulings. We hold that the circuit court lacked jurisdiction when it
granted the motion for a protective order. Accordingly, we reverse and dismiss.
I. Background and Procedural History
Hollis’s employment at Fayetteville High School was terminated by the board in
February 2013. He sought judicial review of the termination pursuant to the Arkansas
Teacher Fair Dismissal Act (TFDA). The termination was upheld by the circuit court, and
we affirmed. 1 Hollis v. Fayetteville Sch. Dist., 2015 Ark. App. 544, 473 S.W.3d 45 (Hollis I).
On August 22, 2014, after the circuit court had upheld his termination and the record
had been filed with this court, Hollis propounded some seventeen FOIA requests to the
district. At the time, Hollis was a candidate for a position on the school board. Specifically,
the three requests at issue are as follows:
10. Copies of all emails and other communications between the attorneys for
Fayetteville Public Schools and the financial office, financial officers, treasurer or any
similar department or employee during the previous one (1) year.
11. Copies of all emails and other communications between the human
resources department for Fayetteville Public Schools and the financial office, financial
officers, treasurer or any similar department or employee during the previous one (1)
year.
12. Copies of all emails and other communications between Vicki Thomas
[the district’s former superintendent] and the financial office, financial officers,
treasurer or any similar department or employee during the previous one (1) year.
On September 4, 2014, the district responded to some of the requests, but also noted
it was renewing a request for a protective order with respect to requests numbers 10, 11,
and 12 that it had filed in Judge Martin’s court. That same day, the district filed a renewed
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Circuit Judge Doug Martin presided over the termination case.
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motion for a protective order under the same docket number as the termination case. The
district argued that these specific requests were overbroad and unduly burdensome,
particularly with respect to the request for all emails by or to “the financial office, financial
officers, treasurer or any similar department or employee.” The district also argued that the
request for all emails would require the production of hundreds of thousands of emails
requiring individual review by counsel to determine if any such emails contained
information that would constitute an unwarranted invasion of personal privacy under Ark.
Code Ann. § 25-19-105(b)(12) (Repl. 2014), or contained protected educational records
under federal law. The district further argued that request no. 10 also required the disclosure
of information protected by attorney-client privilege.
Hollis responded to the renewed motion for a protective order, arguing that the
FOIA requests at issue were not submitted until over four months after Judge Martin had
upheld his termination and, therefore, were not a collateral matter over which the court
retained jurisdiction. He further asserted that the FOIA did not provide exceptions for
information protected by the attorney-client privilege or for requests that the governmental
entity deemed “overbroad and unduly burdensome.” Hollis asked that the motion be
denied.
On September 19, 2014, Hollis filed suit in Circuit Judge Cristi Beaumont’s court
(the FOIA case) against the district to force compliance with his FOIA requests. Hollis
asserted that the district’s earlier, original request for a protective order was denied by Judge
Martin and because the district did not appeal that ruling, that order was now final. Hollis
also requested a hearing.
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On September 26, 2014, the district filed a motion to dismiss the FOIA complaint
pursuant to Ark. R. Civ. P. 12(b)(8) on the basis that the precise issues were also pending
in Judge Martin’s court. The district repeated its arguments made in requesting the
protective order from Judge Martin. The district also argued that the documents subject to
disclosure under the FOIA could still be exempt if protected by order or rule of court.
In his response to the motion to dismiss the FOIA case, Hollis argued that Judge
Martin did not retain jurisdiction over the FOIA requests because the requests were not
collateral to the matters relating to his dismissal. He also argued that the FOIA exemption
for documents protected by order or rule of court does not prevent disclosure of those
documents to a party to the suit, only to the public. He further asserted that the FOIA did
not provide exceptions for information protected by the attorney-client privilege or for
requests that the governmental entity deemed “overbroad and unduly burdensome.”
By letter dated December 1, 2014, Hollis’s attorney requested a hearing from Judge
Beaumont within seven days as provided in Ark. Code Ann. § 25-19-107.
On December 4, 2014, Judge Martin held a conference call and requested the parties
to brief the issue of whether the district’s renewed request for a protective order was
“collateral” to the issues in Hollis I such that the court could exercise jurisdiction. The parties
filed their respective briefs on December 15, 2014. Judge Martin issued a letter opinion on
December 18, 2014, finding that he had jurisdiction to rule on the district’s renewed
motion.
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Also on December 18, 2014, Judge Beaumont dismissed Hollis’s complaint because
the issue of the release of the same information was pending in Judge Martin’s court prior
to Hollis filing his complaint.
A hearing on the district’s renewed motion for a protective order was held before
Judge Martin on January 28, 2015, and the court took the matter under advisement. The
court issued its letter opinion on February 3, 2015. The court first rejected the district’s
claim of exemption for information protected from disclosure by order or rule of court
because there was no prior court order or rule entered by it. The court also rejected the
claimed exemption for material covered by the attorney-client privilege, noting that our
supreme court had ruled that neither attorney-client privilege nor attorney work product
created exemptions to the FOIA. Judge Martin noted that, contrary to the district’s
argument, there was no relevancy requirement in the FOIA. Although the court found that
the district’s claim that Hollis’s requests were overbroad and unduly burdensome was not a
proper response to Hollis, the court also found that the district’s request that Hollis narrow
his requests was a proper response under the FOIA. According to the circuit court, the issue
then became whether Hollis’s requests were “sufficiently specific to enable the custodian to
locate the records with reasonable effort.” The court found that these requests were not
sufficiently specific to enable the custodian to locate the records with reasonable effort, as
required by Ark. Code Ann. § 25-19-105(a)(2)(C). Specifically, the court found that the
“the financial office, financial officers, treasurer or any similar department or employee”
language in the requests precluded them from being sufficiently specific. Because Hollis
refused the district’s request to narrow the nonspecific FOIA requests, Judge Martin
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concluded that the district had properly responded to Hollis’s FOIA requests and that the
renewed motion for protective order should be granted. This appeal followed.
II. Standard of Review
In a FOIA case, the standard of review is whether the circuit court’s findings were
clearly erroneous or clearly against the preponderance of the evidence. Pulaski Cty. v. Ark.
Democrat-Gazette, Inc., 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007). The issue of the
applicability of the FOIA is a question of statutory interpretation, which we review de novo,
because it is for this court to determine the meaning of a statute. Harrill & Sutter, PLLC v.
Farrar, 2012 Ark. 180, 402 S.W.3d 511.
III. Discussion
We start with a brief discussion of the FOIA. The FOIA provides that an Arkansas
citizen may make a request to the custodian of public records to “inspect, copy, or receive
copies of public records.” Ark. Code Ann. § 25-19-105(a)(2)(A). 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 exempted by
the Act or other statutes. Daugherty v. Jacksonville Police Dep’t, 2012 Ark. 264, 411 S.W.3d
196. If the citizen’s request for the records is denied, he or she may bring suit in circuit
court to challenge the denial. Ark. Code Ann. § 25-19-107(a). Here, there is no dispute
that the requested records are public records under the FOIA. Although the district argued
that some of the records were protected from disclosure by attorney-client privilege or other
exceptions, Judge Martin rejected those arguments, and the district did not cross-appeal.
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In the circuit court case that spawned both this appeal (Hollis II) and Hollis I, the
district filed a renewed motion for protective order under the same case number, and before
the same circuit judge (Judge Martin), while the Hollis I appeal was pending. In Hollis I, this
court addressed whether the district violated the TFDA when it terminated Hollis’s teacher
contract for insubordinate conduct. The motion that the district filed while the appeal was
pending in Hollis I was fueled by Hollis’s letter requests for information under the FOIA,
and it was based on Arkansas Rule of Civil Procedure 26(c).
The problem is that our supreme court has embraced the view that the Freedom of
Information Act and the discovery rules under the Arkansas Rules of Civil Procedure
operate independently. See Berry v. Saline Mem’l Hosp., 322 Ark. 182, 185, 907 S.W.2d 736,
738 (1995) (“The FOIA at times provides greater disclosure than do the discovery
procedures afforded by the Arkansas Rules of Civil Procedure.”). The FOIA, in other
words, when properly invoked, provides an avenue for obtaining information that is separate
from the rules of civil procedure. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d
275 (1990) (protective order obtained under discovery rules does not prevent availability of
information under the FOIA). The essential legal question presented in this appeal is
whether the district commenced a FOIA action by filing a “renewed motion for protective
order.” The answer is no for two reasons. First, the district is the custodian of the records
sought. The district’s second attempt to obtain a protective order did not formally
commence a FOIA case because, by statute, only an Arkansas citizen may request to inspect
or copy public records or seek review of the denial of such a request. Ark. Code Ann. §§
25-19-105(a)(1)(A) & 25-19-107(a).
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Second, because Hollis I was on appeal to this court when the unauthorized FOIA
Rule 26 motion was litigated, we hold that the circuit court lacked jurisdiction to enter the
protective order. We therefore reverse and dismiss this appeal without deciding the merits
of the circuit court’s decision. Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007). The
parties’ dispute over access to information under Arkansas’s Freedom of Information Act
may, however, be fully litigated under the law before Judge Beaumont for the reasons stated
in the companion appeal to this case. See Hollis III, supra.
Reversed and dismissed.
HARRISON and GLOVER, JJ., agree.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Bryce G. Crawford, for
appellant.
Friday, Eldredge & Clark, LLP, by: Christopher Heller and R. Christopher Lawson, for
appellees.
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