FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO.
60CV-16-4681] HONORABLE MARY SPENCER MCGOWAN, JUDGE
Law Group PLLC, by: William Whitfield Hyman, pro se
Rutledge, Att'y Gen., by: Colin R. Jorgensen, Sr.
Ass't Att'y Gen., for appellee.
J. GLADWIN, Judge
William Whitfield Hyman, an attorney, filed a complaint in
the Pulaski County Circuit Court under the Arkansas Freedom
of Information Act (FOIA), codified at Arkansas Code
Annotated sections 25-19-101 to -110 (Repl. 2014 & Supp.
2015), to compel appellees Bill Sadler, public information
officer for the Arkansas State Police, and the Arkansas State
Police, Director Colonel Bill Bryant (collectively referred
to as the ASP), to respond to his request for records, which
included dash-cam surveillance video of Nathan Alexander
Earp's arrest for DWI. Hyman had requested the material
on Earp to aid in his representation of Earp at his driver
control hearing. By order filed September 1, 2016, the trial
court dismissed the complaint as moot because Hyman had
received all the material he had requested. On appeal, Hyman
argues that the trial court erred when it found that (1) his
complaint was moot; (2) the ASP rightly denied his request
because of an undisclosed investigation; (3) the statutory
three-day period to respond did not apply to Hyman's
first FOIA request; and (4) Hyman was not a prevailing party
for purposes of an award for attorney's fees by the
Arkansas Claims Commission. We affirm the trial court's
determination that the issue was moot.
15, 2016, Hyman emailed Sadler and made the following FOIA
request to the Arkansas State Police:
1. Surveillance footage and audio from any building or
vehicle (particularly the detention center, patrol vehicle,
and transport station) of Nathan Alexander Earp and his
related DWI charge on or about June 26, 2016, that may have
recorded Nathan Earp.
2. Phone calls, dispatch audio recordings, and CAD logs at
the time of the arrest.
3. Any police reports, narratives, or statements about the
arrest, including narratives.
. . . . 5. Any results or findings of a blood draw.
Hyman sent an August 16, 2016 email to Sadler that noted the
July 15, 2016 FOIA request, Sadler responded by email that he
had received the request for records "associated with an
open investigation relating to Nathan Alexander Earp."
Sadler opined that any video that existed documenting the
alleged driving violation or arrest was exempt pursuant to
Arkansas Code Annotated section 25-19-105(b)(6)
(undisclosed-investigation exemption). He further advised that the evidentiary
records sought might be obtained through the litigation and
responded that the case was "closed by arrest" and
was "not an open investigation." He threatened that
if the ASP did not comply with his FOIA request, he
"might be forced to file a civil suit to force [its]
participation." Sadler responded, "Please contact
the prosecuting attorney and request a subpoena or order and
we will comply with the records we may have."
filed a FOIA complaint against the ASP on August 22, 2016,
and claimed that ASP had refused to provide the videos and
communications he had requested. He claimed that the
undisclosed-investigations exception did not apply because
Earp's DWI investigation was closed by citation on June
26, 2016, and there was no other suspected passenger in the
vehicle. He alleged in his complaint that the videos he
sought would not constitute an undisclosed or ongoing
hearing was held on August 30, 2016, and Hyman testified that
he had made a FOIA request via email to the ASP. He said he
did not get a response from Sadler, so he sent him another
email. He said that Sadler complied with some of it at that
time, but specifically denied the request for video under the
undisclosed-investigation exemption. Hyman stated that he
believed the exemption did not apply because Earp had been
"cited." He said that he made another request for
the information that was denied, so he filed his complaint in
circuit court. He further testified that the ASP's
response on August 23, 2016, was in violation of FOIA because