Ark. Dep't of Commerce v. Legal Aid of Ark.
| Decision Date | 09 June 2022 |
| Docket Number | CV-21-490 |
| Parties | ARKANSAS DEPARTMENT OF COMMERCE, DIVISION OF WORKFORCE SERVICES, Appellant v. LEGAL AID OF ARKANSAS, Appellee |
| Court | Arkansas Supreme Court |
Leslie Rutledge, Att'y Gen., by: Kat Hodge, Sr. Ass't Att'y Gen., for appellant.
Trevor Hawkins, Legal Aid of Arkansas, for appellee.
COURTNEY RAE HUDSON, Associate Justice Appellant Arkansas Department of Commerce, Division of Workforce Services ("DWS"), appeals from the Pulaski County Circuit Court's order requiring DWS to produce unredacted documents in response to the Arkansas Freedom of Information Act ("FOIA") request made by appellee Legal Aid of Arkansas ("Legal Aid"). For reversal, DWS argues that the circuit court erred by finding that certain information was not exempt from disclosure pursuant to (1) the law-enforcement exception contained in Arkansas Code Annotated section 25-19-105(b)(6) (Supp. 2021) or (2) the competitive-advantage exception contained in section 25-19-105(b)(9). We affirm the circuit court's ruling.
On October 13, 2020, Legal Aid submitted a FOIA request to DWS seeking information about how DWS and its third-party vendors determined eligibility for applicants of the Unemployment Insurance ("UI") and/or Pandemic Unemployment Assistance ("PUA") programs. After communication between the parties, Legal Aid submitted a second, narrower FOIA request on December 8, 2020. This request consisted of ten separate items designed to elicit the desired information; however, the only one at issue in this appeal is Item 10, which sought "[a]ll public records, including communications, created by, sent by, sent to, or otherwise provided to DWS employees between March 1, 2020, and present that contain the words ‘algo’ or ‘algorithm’ in singular or plural form." Legal Aid expressly noted that it was not requesting confidential information about any individual claimant.
DWS notified Legal Aid on December 18, 2020, that it had located two Outlook files pertaining to Item 10 but that it would take some time to review the 5.8 gigabytes of data and redact any confidential information. After DWS failed to provide a timeline for the production of the documents, Legal Aid filed suit on February 18, 2021. Legal Aid alleged in its petition that it had made its FOIA request after hearing from many claimants that were having trouble accessing their unemployment benefits, including months-long delays in processing claims, wrongful denials, unsubstantiated allegations of fraud or overpaid benefits, and lack of information about application procedures. According to the petition, DWS had provided neither the records responsive to the FOIA request nor a timeline for doing so despite extensive correspondence between the parties, and Legal Aid prayed that the circuit court schedule a hearing within seven days and order DWS to produce the documents relevant to Item 10 within ten business days of the hearing.
The circuit court held a hearing on Legal Aid's petition on March 2, 2021. DWS's representative, Don Denton, testified that the records responsive to Item 10 were expected to comprise more than 42,000 pages of emails that had to be printed, reviewed, and redacted where necessary. The circuit court entered an order on March 12, 2021, finding that DWS was substantially justified in its delay responding to Legal Aid's FOIA request; however, the court ordered DWS to submit an estimated timeline for production of the records pertaining to Item 10 and to provide these records to Legal Aid on a weekly basis in accordance with its timeline. In a March 19, 2021 letter to the circuit court, DWS anticipated that based on the agency's current technological resources and staffing level, its review, redaction, and production process would be complete within twenty-five weeks.
On April 8, 2021, Legal Aid filed a motion for a conference, asserting that in the 6,000 pages produced thus far, DWS had redacted information that did not identify individual claimants or expose protected employee data. Rather, Legal Aid argued that DWS had redacted information about algorithms, or factors, that the agency uses in its processes to determine benefit eligibility. According to Legal Aid, when it communicated its concerns to DWS, the agency responded that disclosing the redacted information would allow "bad actors" to gain financially to the detriment of DWS and valid claimants and that it objected to disclosure under Ark. Code Ann. § 25-19-105(b)(9)(A). DWS further claimed that these bad actors were under investigation by federal and state law enforcement, that it was assisting in these investigations, and that this information was also protected from disclosure under Ark. Code Ann. § 25-19-105(b)(6). Legal Aid argued in its motion that these exceptions to the FOIA were inapplicable and requested that DWS be ordered to produce this information. Following a second hearing held on April 22, 2021, the circuit court entered a May 3, 2021 order finding that DWS's redactions were justified pursuant to section 25-19-105(b)(6).
Legal Aid filed a motion to compel production on June 9, 2021, alleging that DWS had produced 2,103 files, totaling 47,977 pages, and that DWS had indicated that its response to the FOIA request was complete. Legal Aid argued that hundreds of pages had been redacted and that DWS's redactions pursuant to its claimed exemptions were improper. The motion requested that the circuit court hold an evidentiary hearing and conduct an in camera review of the documents to make an informed decision as to the correctness of the redactions. In its response, DWS continued to assert that the redactions were appropriate pursuant to sections 25-19-105(b)(6) and -105(b)(9).
The case was subsequently reassigned to a different circuit court judge after the original judge recused herself due to a conflict. On July 28, 2021, the circuit court entered an order granting Legal Aid's motion to compel. The court ordered that the unredacted documents be produced, that access to the documents be limited to counsel of record and their immediate support staff, that no electronic copies of the unredacted documents be created or stored, and that no publication of the documents be allowed. DWS filed a timely notice of appeal from this order.
On appeal, DWS first argues that its records containing the factors that it uses to identify fraud are exempt from disclosure under the FOIA pursuant to Ark. Code Ann. § 29-19-105(b)(6), the law-enforcement exception. The applicability of a FOIA exemption is a question of law that we review de novo. Dep't of Ark. State Police v. Keech Law Firm , 2017 Ark. 143, 516 S.W.3d 265 ; Fox v. Perroni , 358 Ark. 251, 188 S.W.3d 881 (2004). It is for this court to determine the meaning of a statute, and we are not bound by the circuit court's interpretation. Perroni , supra . We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner, and we therefore construe the Act in favor of disclosure. Myers v. Fecher , 2021 Ark. 230, 635 S.W.3d 495 ; Jones v. Prof'l Background Screening Ass'n, Inc. , 2020 Ark. 362, 610 S.W.3d 640. While the FOIA contains exemptions, we interpret those exemptions narrowly, and "[i]f the intention is doubtful, openness is the result." Keech , 2017 Ark. 143, at 2–3, 516 S.W.3d at 267. The burden of proving an exemption to the FOIA rests with the keeper of the requested records claiming the exemption.
Orsini v. State , 340 Ark. 665, 13 S.W.3d 167 (2000) ; Young v. Rice , 308 Ark. 593, 826 S.W.2d 252 (1992).
We have consistently held that the purpose of this statutory exemption is to protect ongoing investigations. Keech , supra ; Martin v. Musteen , 303 Ark. 656, 799 S.W.2d 540 (1990) ; McCambridge v. City of Little Rock , 298 Ark. 219, 766 S.W.2d 909 (1989). "[I]f a law enforcement investigation remains open and ongoing, it is meant to be protected as ‘undisclosed’ under the act." Martin , 303 Ark. at 660, 799 S.W.2d at 542.
DWS contends that the exemption in section 25-19-105(b)(6) applies to the information in its records regarding the factors, or algorithm, that it uses to screen applicants for PUA benefits because it is actively participating in an ongoing nationwide effort to combat fraudulent claims related to pandemic-inspired UI programs. According to DWS, these fraud factors are used to identify, investigate, and curb fraud in cooperation with the United States Department of Justice's National Unemployment Insurance Fraud Task Force, which includes multiple federal law enforcement agencies such as the United States Department of Labor—Office of Inspector General, the Federal Bureau of Investigation, and the Social Security Administration—Office of Inspector General. DWS argues that releasing the characteristics used to identify potentially fraudulent claims would severely undermine this concerted national effort.
Legal Aid responds that the law-enforcement exemption does not protect this information because (1) DWS is not a "law enforcement agency," (2) there is no open and ongoing investigation into suspected criminal activity, and (3) the withheld records are not sufficiently investigative to fall within section 25-19-105(b)(6). We agree with Legal Aid that DWS is not a law-enforcement agency, and, on that basis alone, this exemption does not apply.
In Legislative Joint Auditing Committee v. Woosley , 291 Ark. 89, 722 S.W.2d 581 (1987...
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