Attorney General Leslie Rutledge has responded to a city of Little Rock request for an opinion on whether it should comply with Freedom of Information Act requests for information related to Police Chief Keith Humphrey’s use of force on New Year’s Eve by saying like it should do so on at least some items.

City Attorney Tom Carpenter’s notice to city officials also was copied to media that have sought information.

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Dear Mayor Scott and Members of the Board of Directors,

          Late this afternoon, while I was involved with another matter, Attorney General Leslie Rutledge forwarded her opinion [2022-006] in response to the City’s request for guidance about the Arkansas Freedom of Information Act (“AFOIA”), Chief Keith Humphrey, and an ongoing criminal investigation into an officer involved shooting (“OIC”) which occurred on 31 December 2021. Chief Humphrey was involved with the OIS, and the AFOIA requests seek public records that relate to him. In short, the Attorney General could not give a definitive opinion on various items because she did not have the actual public records. However, in terms of unfettered observation of requests that all requested public records be deemed exempt from disclosure pending the outcome of the investigation, the opinion clearly states:

The City lacks authority, moreover, to exempt records absent specific statutory authority. Thus, at least with respect to items not covered by…[the law enforcement exemption, the employee-evaluation exemption, or the personnel records exemption], or any other statutory exception, I believe the prosecutor’s concerns and request are beyond your consideration as custodian or my authority to review.

Ark. Att’y Gen. Op. No. 2022-006 (January 21, 2022) at 12 [emphasis added][explanation added]. Hence, the City should compile the various public records that have been requested pursuant to the AFOIA. After initial redaction of materials that are not subject to disclosure, I believe it prudent to notify the Prosecuting Attorney and Arkansas State Police what the City intends to disclose, including a redacted copy of the documents in question, and move forward with disclosure. If the Prosecutor or the Arkansas State Police wish to seek injunctive relief in state court, then a court of competent jurisdiction will make a determination that, as noted above, is not for the City to make.

          Attached to this email is Ark. Att’y Gen. Op. No. 2022-006 (January 21, 2022), a copy of my email to Assistant Attorney General Kelly Summerside thanking her for sending the opinion, a copy of the opinion request dated January 14, 2022, and a separate PDF of the opinion request. The latter documents are for your convenience if you wish to refer to the request while reading the opinion.

          Please note that various individuals, as well as news media entities, are copied on this email. I had promised to contact them as soon as the office heard anything about the opinion. I note again that while they have not abandoned the various AFOIA requests for information, understanding the unique and difficult nature of this situation, they have not pursued legal action against the City while the City has sought guidance from the Attorney General.

                   Tom

Some information has been requested — such as logs that would show if Humphrey had checked out a body camera the day he fired at a woman firing a gun in a convenience store parking lot — clearly is open under the FOI, and Carpenter has indicated as much previously. The city has claimed a criminal investigation exemption and expressed wishes of the prosecuting attorney that information is withheld until the State Police criminal investigation is completed. But these are claims and wishes, not law in terms of several pieces of specific information, including that of Humphrey’s compliance with firearms certification.

The city is also doing an administrative review and, absent a finding that the chief should be suspended or fired, some of the material would remain protected. But not all of it. Rutledge’s opinion says as much.

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So what now? Sounds like the city isn’t ready to fork over information immediately. That would keep with the lack of transparency that has marked the administration of Mayor Frank Scott Jr.

Here’s the Rutledge opinion.

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This is Carpenter’s request.

Bottom line from where I sit: Humphrey was justified in shooting that night (even if he only hit an innocent car). Many questions remain as to whether he followed department policy on the use of body cameras and de-escalation techniques. The mayor will do what he can to protect his chief. The chief’s critics, from the Fraternal Order of Police to many city directors, will want to know more. Crime in the city will continue.

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