The Arkansas Court of Appeals today said that the state Freedom of Information Act allows people to copy public records includes using a cell phone.

Judge Mackie Pierce had ruled against Ben Motal, who wanted to use his cell phone to take a photo of an accident report. The city of Little Rock ultimately provided Motal with a copy of the report and waived the city $10 fee for providing a copy, but he took the case up on appeal to establish that a cell phone could be used to comply with the law that said the public may inspect or copy public records. Judge Pierce said he viewed the word “copy” in the law to mean copy and fax machines, not a camera.

The Court of Appeals, in a 5-1 decision written by Judge Kenneth Hixson reversed Pierce. It said the statute was unambiguous.

Black’s Law Dictionary defines “copy” as “an imitation or reproduction of an original.”  Under the plain, ordinary, and usually accepted meaning in common language of the word copy in Black’s, a photograph would produce a “reproduction of the original” public record.  While this precise issue is one of first impression, this question has already been analyzed and answered in Attorney General Opinion 2008-162.  In Thomas, our supreme court explained that although attorney general opinions are not binding on the court, the General Assembly has specifically said that attorney general opinions should be used for guidance in the FOIA context.  Moreover, our supreme court has looked in the past to attorney general opinions for guidance when no case had addressed the issue at hand.

 

In Attorney General Opinion 2008-162, Attorney General Dustin McDaniel was asked whether FOIA allows an individual to take digital photographs of public records.  He opined that “a person requesting records under the FOIA is free to take digital photos of the documents and the records custodian cannot issue a blanket prohibition against that.”  (emphasis added).  The attorney general explained that FOIA affords citizens the right to inspect and copy public records, and he cited his 1985 predecessor’s opinion that “this copying can ‘be done by hand, or with a camera or other mechanical device at the disposal of the citizen.’”  (emphasis added)).  This opinion is consistent with our rules of statutory construction and is cited with approval by a leading treatise on FOIA.  The treatise states that an agency “must permit the requester to copy or photograph public records on site.” Further, we note that our supreme court has previously contemplated a broader definition of the term “copy” in the FOIA context.  (holding that an indigent petitioner seeking  a “photocopy” at public expense of the briefs filed on direct appeal pursuant to FOIA was not entitled to “photocopying” at public expense unless he demonstrated some compelling need for specific documentary evidence to support an allegation contained in a petition for postconviction relief).  In Moore, our supreme court used the term “photocopy” to presumably mean the same as the term “copy” in the statute.  While Black’s does not give a definition for the term “photocopy,” www.dictionary.com defines the verb “photocopy” as “to reproduce (a document, print, or the like) photographically.” Thus, we hold that in keeping with our mandate to interpret FOIA liberally to accomplish the purpose of promoting free access to public information, the term “copy” should be liberally interpreted to include the taking of a photograph.

 

Judge Raymond Abramson dissented. He said the case should have been held as moot because Motal got the report. The majority said it dealt with an issue of public importance that needed clarification. He also said it was an issue for the Supreme Court or legislature to decide because the statute wasn’t clear on what “copy” meant.

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Here, I do not believe “copy” means a photograph taken on a cell phone without payment of the mandated fee. I agree with the circuit court’s analysis: “If the Arkansas legislature had intended photographs to be included it would have listed as such in the language of the FOIA.”

Here’s the relevant portion of the law at issue, as cited in the opinion:

Arkansas Code Annotated section 25-19-105 provides in relevant part,

(a)(1)(A) Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.

. . . .

(2)(A) A citizen may make a request to the custodian to inspect, copy, or receive copies of public records.

. . . .

(d)(1) Reasonable access to public records and reasonable comforts and facilities for the full exercise of the right to inspect and copy those records shall not be denied to any citizen.

You’ve long been able to take your own copy machine to copy records to avoid high charges by public agencies. Also unmentioned here is that many cell phones that include scanners that produce PDFs of documents. They function more like copy machines than cameras in that case.

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I think the Court of Appeals got this one right. A copy of a document is a copy of a document. Should a court bar legal notices in “newspapers” that no longer use paper? Times are changing.