HE WON: Racop posted this on Facebook in advance of today's hearing.


City Board candidate Russ Racop
reports that Judge Wendell Griffen ruled in his favor today on his Freedom of Information Act lawsuit challenging Police Chief Kenton Buckner’s decision to stop releasing photographs of Little Rock police officers.

Racop, who writes a blog, Bad Government in Arkansas, that deals often with what he perceives to be police misconduct, has made frequent use of photos in the past and otherwise made himself something of a nuisance to city officials, particularly the police.

Racop said the judge asked several questions about police practice of frequently postting officer photographs on their own social media pages. They have meet-a-cop events, publish photos of academy graduates and otherwise run many publicity photos of the force.

The judge ordered the photos made available — except for those of undercover officers, which are protected by law — by 4 p.m. today. I’ve asked City Attorney Tom Carpenter if the city will appeal or comply.

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UPDATE: Carpenter has recommended against appeal, but is prepared to do so if the City Board directs otherwise. His memo to the Board:

Dear Mayor Stodola and Members of the Board of Directors,

This morning a circuit court rejected the City’s reliance on part of an AG opinion that an FOIA request for pictures of law enforcement officers, in departments that have undercover officers, can be exempt from disclosure. Judge Wendell Griffen ordered that the photographs be released by 4:00 this afternoon. Because the City relied upon the AG opinion, there was no fine imposed.

It is possible to appeal this decision and to seek a stay of enforcement until a decision. However, from what I have gleaned from the attorneys who tried the case, this is not the course to take. In the first place, we knew that it was questionable to refuse disclosure since there is not an express exemption for pictures of law enforcement officers who are not undercover officers. However, because the identity of undercover officers can change, an AG opinion from the period when the Honorable Dustin McDaniel was AG suggested that such records should not be released. If that were the only fact involved, then an appeal might be appropriate.

However, the City publishes an annual photograph of each graduating class of police officers. In the CALS collection are books put together in the past that have photographs of officers in the Department including several who are still working for the department. The LRPD publishes photographs of individual officers all the time for various reasons. And, the policies of LRPD permit officers to appear on social media in their uniforms. The efforts of LRPD are designed to enhance relations in the community. The point, though, is that these efforts negate a defense on protection of all pictures because some present officers may be undercover officers in the future. We are not required to provide photographs of the undercover officers.

I have instructed my lawyers to prepare a notice of appeal and request for a stay pending appeal. HOWEVER, unless I am instructed otherwise by the policymakers, I do not intend to appeal this decision. Since the 4:00 deadline to turn the pictures over to Mr. Russ Racop – the plaintiff – can lead to a contempt citation if not met, in light of the court’s factual conclusions on the issues outlined above I believe the City should meet the deadline and provide the photographs. Of course, if that is done, an appeal is really moot.

Please let me know if you have a different opinion. Again, this is an example of the Arkansas FOIA being so much in favor of the disclosure of public information. Still, with all of the publication done by the City – for perfectly legitimate reasons — it is virtually impossible to argue contrary to the decision. And, the general rule is that an exemption under FOIA must be established beyond a reasonable doubt. This high standard renders it extremely unlikely – if not impossible – to obtain a reversal on appeal, especially since the factual element is not clearly erroneous.

Tom

Here’s the judge’s order.

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