Editor’s note: To state the obvious, it’s an unusual situation for us at the Arkansas Times to be writing about a lawsuit filed against the governor by one of our own reporters. But the public and the press have an interest in the release of the records in question, as well as pushing back generally against government officials’ overly broad claims of FOIA exemptions. We stand behind Matt’s pursuit of these records, and we hope we’ve reported the story below fairly.
A Pulaski County circuit judge dismissed a lawsuit against Gov. Sarah Sanders on Tuesday that sought to compel the governor to release documents her office claimed were exempt from the Arkansas Freedom of Information Act.
The lawsuit was filed in late October by Matt Campbell, the attorney behind the Blue Hog Report blog. In November, Campbell began working full time as a reporter for the Arkansas Times and stopped practicing law, though he continued to pursue this and a related FOIA case.
Judge LaTonya Austin Honorable dismissed the lawsuit after Attorney General Tim Griffin’s office (which represented the governor) filed a motion yesterday noting the complaint and summons had not been served within 120 days of being filed. Campbell had requested a 15-day extension on Feb. 21 — the last day of the 120-day window — but the court did not grant it.
Honorable dismissed the suit without prejudice, meaning it still can be re-filed.
The lawsuit concerns a FOIA request Campbell made to the governor’s office in October for emails to and from Bryan Sanders, the governor’s husband, who was appointed to head an advisory council on outdoor recreation. Campbell also requested Bryan Sanders’ Outlook calendar and shipping documents related to the $19,000 purchase of a lectern earlier last year. Cortney Kennedy, chief legal counsel in the governor’s office, denied the request, citing the FOIA’s exemption for “unpublished memoranda, working papers and correspondence of the Governor.”
Previous governors have used the “working papers” exemption to shield staff communication. But Campbell pointed out Bryan Sanders is not a state employee. That means he’s not on the governor’s staff, Campbell argued, although he seems to have had two state-owned email addresses. (It’s also debatable whether the “working papers” exemption applies to governor’s staff emails in general, Campbell added.)
Griffin issued a statement Tuesday following the dismissal of the lawsuit. “This was the proper outcome for this baseless case after Mr. Campbell failed to serve process within 120 days of filing the complaint — the second time this year he has had a case dismissed for failure to serve process,” he said. “It’s unfortunate that cases like this waste taxpayer dollars and clog up our judicial system.”
Campbell said the case wasn’t served in part because he was busy in his new role and because he was already planning to amend it to include additional working-papers violations of the FOIA.
“It was almost as easy to simply wait and refile that one, so I wasn’t worried about service at the time,” he said.
The second dismissed case referenced by Griffin was the FOIA lawsuit Campbell filed against the Arkansas State Police in September. After Campbell became sick with COVID-19 and was unable to attend a hearing that month, the case was dismissed, but he refiled it soon thereafter. Meanwhile, though, state law had changed: Republican allies of Gov. Sanders in the state Legislature modified the FOIA during a September special session called by the governor in response to Campbell’s records requests. A bill passed by the Legislature and signed by Sanders shielded certain records — including state police and travel records related to the governor — from disclosure on the basis of “security.”
Pulaski County Circuit Judge Herb Wright dismissed the re-filed case in February. Campbell said it had become pointless to pursue the case in light of the changes made to the FOIA during the special session and a recent state Supreme Court decision that foreclosed a procedural challenge to the law.