Circuit Judge Patricia James Tuesday ruled in favor of Legal Aid of Arkansas in its Freedom of Information Act lawsuit seeking to dislodge information from the Arkansas Workforce Services Division about its slow-walking of unemployment benefit claims.

Legal Aid sued after four months of trying without success to get information from the state about the handling of claims, both conventional and additional benefits paid by the federal government under the pandemic unemployment assistance program. Thousands of claimants have been waiting three months or longer for answers on eligibility and have encountered difficulty in communication throughout.

Advertisement

I watched much of the hearing by Zoom yesterday, before turning to legislative issues. The state’s argument essentially was that Legal Aid wanted too much information and it was taking weeks to compile it. That wasn’t an explanation, however, for why the state refused, after first initially floating the idea, to have a meeting to talk with Legal Aid about its process rather than requiring a full FOI. Legal Aid is particularly interested in the algorithm used by a private contractor, Protech Solutions, to initially set aside claims for individual review as fraud-detection protection.

I can imagine the state would NOT like to talk about this or produce documents that shed light on a demonstrably fraught process. The contractor has been working for the state for more than eight months, including in the initial rollout of the PUA program that had a gaping security breach first reported by the Arkansas Times. And frustrated claimants still hunger for answers.

Advertisement

The judge found the agency had a legitimate reason for not producing all the individual claims decisions in three days as the law requires, given the volume and need for redaction, so she didn’t find a willful law violation by the state. But, Legal Aid attorney Jaden Atkins summarized the win for Legal Aid:

  1. The judge ultimately gave us what we want: DWS has to produce documents regarding its relationship with Protech within 24 hours. And, it has to start producing documents regarding its use of algorithms this Friday and continue producing more every week until our request has been fulfilled.

  1. We learned a lot in the hearing about what’s happening, but there are still unanswered questions regarding DWS and Protech’s relationship. DWS is relying on Protech’s secret algorithm to make initial determinations about eligibility that are then later followed by DWS workers. We don’t know what measures DWS is taking to make sure the algorithm’s recommendations are valid. We don’t whether DWS workers actually exercise any independent review or investigation.

We’ll be following up on what’s happening here.

  1. While the judge ruled that DWS was “substantially justified,” that’s just for purposes of attorneys’ fees, which we did not request. Also, there’s a bigger point here: the judge’s ruling recognized that even a pandemic does not excuse an agency from the obligations of FOIA.

The judge, in essence, found that Protech didn’t actually deny claims, it merely flagged them. That’s a good cover for DWS but cold comfort to the thousands effectively denied by the secret algorithms. Sunshine is welcome.

Advertisement

Legislators, at last, are starting to feel the heat, though few have had the gumption to stand up and demand answers from the Hutchinson administration over this disaster.

Noted, however: Sen. Jonathan Dismang begged the Senate Monday to find a central point to relay constituents’ complaints about Workforce Services’ handling of claims. That’s good news. Word is getting around. The governor this week also voluntarily acknowledged the enormous backlog of unpaid claims at a news briefing, though he continued to defend the agency’s handling, citing the as-yet-unsubstantiated alibi of fraud detection.

In a related matter, a federal judge in Fayetteville Tuesday refused the Workforce Services Division’s request to dismiss a lawsuit Legal Aid has filed on behalf of a Spanish-speaking housekeeper who encountered a hellish obstacle course in seeking benefits after losing a hotel cleaning job. In his ruling justifying a continuation of the case, Judge Timothy Brooks said the claimant had “put forward facts to support her assertion that defendant’s conduct has been arbitrary, capricious, wantonly injurious or in bad faith.”

Brooks said Maria Murguia’s due process rights had been abridged by an unreasonable delay in the state’s handling of a conventional unemployment benefit claim, a necessary step in the process to seek pandemic unemployment assistance. He also said Murguia had presented prima facie evidence that she’d been discriminated against on account of national origin (she said employees were hostile because of her limited command of English) and the state must present evidence for a non-discriminatory reason for her treatment.

Advertisement