Arkansas housing director criminally convicted for violating public records law

Kelly Swanson | Freedom of Information | News | June 11, 2015

Little Rock Metropolitan Housing Alliance Executive Director Rodney Forte was charged last November with violating Arkansas’ Freedom of Information Act (FOIA). Last Thursday, Forte was found guilty and convicted of a Class C misdemeanor.

Judge Alice F. Lightle described Forte’s actions as a “negligent violation of the FOIA” and sentenced him to pay a $100 fine and an additional $140 in court costs.

Although the “requests were numerous and may have been burdensome,” Lighte said, the Arkansas FOIA puts the responsibility on the head of an agency to ensure full compliance of the law. Therefore, Lightle found Forte, as executive director, guilty, and concluded that, “any other result would defeat the purpose of the FOIA.”

Larry Jegley, the State Prosecuting Attorney, said that this case was the first time in his 25 years of working as a prosecutor in Arkansas where a government employee was charged criminally for violating FOIA.

“I imagine if it is not the first in the state, it is among a precious handful,” Jegley said.

Tom Larimer, Executive Director of the Arkansas Press Association, agreed that the ruling was rare, but said that criminal proceedings were necessary in this case.

“Nobody, at least in my knowledge, has spent a night in jail for violating the Arkansas Freedom of Information Act, but if somebody was to be sentenced to jail over an egregious violation of the law, it certainly would have been appropriate in this case,” Larimer said.

The FOIA requests in question were made by the Arkansas Democrat-Gazette over the months of August, September and October of last year. The newspaper requested a list of Metropolitan Housing Alliance (MHA) employees that were terminated, resigned, or laid off, as well as work orders/complaints that the alliance has received in a three year period.

Alec Gaines, an attorney for the Arkansas Democrat-Gazette, explained the newspaper’s reasons for the request.

“The newspaper was doing an investigation into why there were furloughs and why they were laying off a lot of lower level workers, but then they [the MHA] came out and filled a position that I believe might have been a $96,000 a year position,” Gaines said.

According to the state’s brief, in response to the requests, the MHA provided the Arkansas Democrat-Gazette with what they called “a breakdown” of the costs, which is required under the Arkansas FOIA.

“Under Arkansas law you have to provide an itemized accounting of where that number came from, and the newspaper never got that,” Gaines said.

The cost estimate, which according to the State’s brief did not provide an itemized breakdown of the charges, was for $16,378 in order to hire additional workers and buy extra supplies. No explanation as to how that estimate was attained was given.

“He [Forte] chose to spit in the eye of the public’s right to know," Jegley said. "It just put it over the top when they said, ‘yeah we’ll do it, but you have to give us over $16,000.’ I mean that is just beyond the pale.”

Mr. Jegley said the bill left him no other option than to pursue criminal charges, prompting him to issue an arrest affidavit for Forte on Oct. 30.

“Every single time there is a problem that is brought to my attention by a citizen or a member of the press over [Arkansas’] FOI, the party or agency who has the records to which access is entitled, gets it right and does the right thing. But, in this case, they basically thumbed their nose at the process and said, ‘ok fine, give us $16,000 and we will let you have it.’ The day after that was when I went ahead and charged him criminally,” Jegley said.

Forte’s defense rested on the fact that he delegated the requests to another MHA Assistant Director for Administrative Services Marshall Nash.

Gaines said that according to the Arkansas FOIA, which clearly defines who is ultimately responsible for responding to a request, Forte is still wholly responsible.

“I think the Arkansas law does an excellent job of defining exactly who is responsible for FOIA requests. It defines who is a custodian. So under Arkansas law, the head of an agency is the custodian of those records and they have the responsibility to respond to any records request. So he [Forte] can ask other people to perform tasks, but ultimately, the responsibility lies at his feet.”

The section of the Arkansas FOIA that Gaines is referring to, 25-2-103(1)(a), defines the term “custodian”. It reads, “‘Custodian’, with respect to any public record, means the person having administrative control of that record.”

Judge Lighte agreed with the prosecution, saying, “specifically the court finds that the defendant as the Executive Director of the Metropolitan Housing Authority is the custodian of records of the Agency. As such it is his duty to act for an on behalf of the agency in response to requests under the FOIA.”

States have varying punishments for violators of FOIA. According to a 2010 report written by the National Association of Counties, 20 states have FOIA statutes that allow for criminal sanctions of violators. 25 states have civil fines.

This case comes amidst a hearing held at the House Committee for Government Oversight and Reform last Tuesday and Wednesday, where punishments for violators of the federal FOIA were discussed. Jason Leopold and Sharyl Attkisson agreed that the federal FOIA should be reformed to include provisions to punish FOIA officers who do not comply with the rules both civilly and criminally.

Larimer agreed that punishments on the federal level would increase accountability.

“Well if there’s no penalty for violating then I’m not sure why we even have a law. So, yeah, I’d be for the penalties because there needs to be some consequences for being held accountable under any law, and that would include the [federal] FOIA,” Larimer said.

Forte still has 20 days to appeal the decision, and the Arkansas Democrat-Gazette still has the opportunity to take the case to civil court.