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Pulaski County Special School District v. Delaney

Court of Appeals of Arkansas, Division III

April 10, 2019

PULASKI COUNTY SPECIAL SCHOOL DISTRICT APPELLANT
v.
STEPHEN NICHOLAS DELANEY APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIX T EEN T H DI V ISI O N [NO. 60CV-18-1831] HONORABLE MORGAN E. WELCH, JUDGE

          Benquette, Billingsley & Kees, P.A., by: George J. Benquette, Jr., and W. Cody Kees, for appellant.

          Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellee.

          LARRYD. VAUGHT, JUDGE.

         Pulaski County Special School District (PCSSD) appeals the order entered by the Pulaski County Circuit Court finding that the Arkansas Freedom of Information Act (AFOIA) required it to provide electronic copies of documents requested by Stephen Nicholas Delaney at no cost. On appeal, PCSSD argues that the circuit court erred in finding that it was required to provide electronic copies of documents to Delaney because the requested records were not readily available or readily convertible to electronic form and because PCSSD is not required to create a record. We affirm.

         On January 11, 2018, Delaney emailed PCSSD a request for fourteen records pursuant to the AFOIA: copies of invoices from five law firms; signed contracts and change orders from two architecture firms and one construction company related to construction projects at Robinson Middle and Mills High Schools; the "Total Construction" file presented at the April 11, 2017 school-board meeting; summaries of financial reports for September, November, and December 2017; and the "Boardbook" from the March 14, 2017 school-board meeting. Delaney requested that the copies be provided to him "in electronic format." PCSSD responded to Delaney's request the same day it was received and requested additional time to produce the copies.

         On January 22, 2018, PCSSD advised Delaney that paper copies of the records he requested were ready for pickup at its central office and that the cost for the 1, 816 copies (at fifteen cents per page) was $272.40. The following day, January 23, Delaney brought a $272.40 cashier's check to the central office but because he did not show identification, the records were not provided to him. On February 22, 2018, Delaney emailed PCSSD asking for a waiver of the fee and requesting-again-that the documents be provided to him electronically. PCSSD did not waive the fee or provide the records in an electronic format.

         On April 4, 2018, Delaney filed a complaint in the circuit court alleging that PCSSD violated the AFOIA by failing to provide him copies of the documents he requested in an electronic format, by charging him costs greater than the actual costs of reproduction, and by failing to provide the paper copies of the documents when he tendered payment. At trial, the issues presented were limited to (1) whether the AFOIA required PCSSD to provide electronic copies of the requested records to Delaney at no charge; and (2) whether a charge of fifteen cents per page for paper copies is proper under AFOIA.

         Deborah Rausch is the executive director of communications for PCSSD and its custodian of records. She testified at trial that she received Delaney's January 11, 2018 AFOIA request and that it was too voluminous to provide to him electronically. She said that most of the documents he requested were in paper form, had to be scanned, and her scanner would scan only twenty pages at a time, which meant she would have to scan approximately ninety sets of pages. She testified that this task would have taken her all day. Rausch also testified that she had made electronic copies for Delaney in the past, but it had been only a couple of pages. According to Rausch, another reason the records were not provided electronically was because she had to print many of the records to make redactions by hand; however, she did not remember what percentage of the documents required redactions.

         Chief Technology Officer for PCSSD, Will Reed, testified that when an AFOIA request is made, his department pulls the information and sends it to Ricoh-its in-house third-party printing contractor. Reed said that the law-firm invoices, signed contracts, and change orders were paper records (that had to be scanned) after they were redacted. He stated that he often helps redact records. Reed stated that the "Boardbook" was not available in an electronic PDF at the time of Delaney's request; therefore, it had to be printed and then scanned. He testified that the financial records were available electronically.

         Reed further stated that the documents requested by Delaney were from different PCSSD departments and in different formats; therefore, to preserve the "fidelity" of the AFOIA request, it was best to print out all the documents requested, which permitted PCSSD to retain a copy. Reed further testified that he has access to all the PCSSD scanners and that each scanner will scan between twenty and forty pages at a time. He added that Ricoh has scanners that can scan about 150 pages at a time and that PCSSD has to pay extra for that service.

         Russell Racop, a third-party witness called by Delaney, testified that in the past he had sent AFOIA requests to PCSSD for documents in an electronic medium. He stated that he received the documents electronically, they had been redacted, and he was not charged a fee. He also testified that he had received one email from PCSSD containing fifty pages of documents.

         At the conclusion of the trial, the circuit court orally ruled that the AFOIA required PCSSD to provide Delaney electronic copies of the requested records by scanning them at no charge.[1] The court entered an order on September 17, 2018, restating this finding and further finding that PCSSD has the ability to scan and convert the records into an electronic format and that there was no evidence demonstrating what percentage of the requested documents required redaction. On appeal, PCSSD challenges the circuit court's finding that it was required to provide electronic copies of documents requested by Delaney. It argues that the requested records were not readily available or readily convertible to electronic form and that the AFOIA does not require PCSSD to create a record.

         The appropriate standard of review on appeal from a bench trial is whether the circuit court's findings were clearly erroneous or clearly against the preponderance of the evidence. Daugherty v. Jacksonville Police Dep't, 2012 Ark. 264, at 5, 411 S.W.3d 196, 199. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire ...


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