by Max Brantley
It's news, for one thing. County clerks have discovered that the legislature's efforts to limit Freedom of Information Act requests by jail and prison inmates seem to have been insufficient to keep them from being supplied copies of court records. Release of those documents, when prisoners are parties in a case, apparently is covered by rules of the Arkansas Supreme Court, which trump the statute.
It's not just a legal issue. Milligan has done some thinking on the issue. He's decided to open court records to prisoners — only their own records — without first having to find a lawyer to make the request for them. He thinks it's just the right thing to do.
Milligan hints at the notion that there might be something discriminatory in applying open records laws based on incarceration status. Wish I'd thought of that. I've always thought there were ample means to defeat many frivolous FOI requests. Recordkeepers are not required to create records that don't exist. They are not required to deliver them to requestors. They may charge a reasonable fee for copying. Still, I frankly didn't give the legislation much thought and should have.
Anyway, I've had my fun with Milligan on occasion in the past. He's a former state Republican chairman and you can guess we don't share many political viewpoints. But I credit him here with thoughtful stewardship of public office and a dose of fairness for people who have few advocates. His op-ed follows:
By Dennis Milligan
Saline County Circuit Clerk
Henry Ford once said, "If there is any one secret to success, it lies in the ability to get the other person's point of view and see things from that person's angle as well as your own."
When I was chairman of the Republican Party of Arkansas, I thought having a Republican primary race was a good thing. For far too long people voted in the Democrat's primary elections because there were no Republican primaries. Often there were no Republican candidates for the local offices. If people wanted a voice in who was elected county judge or sheriff, they had to vote in the Democrat primary.
As chairman, my point of view was that a Republican primary race showed the party is growing and offering the voters a choice.
Now that I am a local elected official in Saline County who could face a primary opponent next year, my point of view has a different angle. I don't have the same excitement about a primary election I had as party chairman.
Seriously, there is an important issue that I have recently gained a different perspective on that has implications for people in the entire state.
During this last session, the Legislature passed Act 168 of 2011. That law denies people incarcerated in a correctional facility their right to copy and inspect public records available under the Arkansas Freedom of Information Act.
Like the other county-level officials, I was glad to hear that Act 168 had become law — at least at first. State and county officials had been bombarded with endless requests from prisoners asking for copies of all kinds of records. Act 168 was passed to prevent these jailhouse lawyers from making frequent and often duplicated requests just because they were bored behind bars.
Countless man hours have been spent filling these requests. My first thought on Act 168 was that now my employees’ time would be better spent serving people who are not in prison. Under the new law, prisoners can still get copies of their court records, but they must have their attorneys request them. I justified going along with this by telling myself that people in prison were not being hurt by this. They just had to wait a little longer for records they really wanted. People in prison have nothing but time on their hands, so what does it hurt if they have to wait to get those records?
But my conscience kept reminding me of the old legal maxim "Justice delayed is justice denied." Act 168 may have made it legal to deny people the records on why they are imprisoned. It didn't seem like the right thing to do.
I am as leery of adding any exemption to the Freedom of Information Act as I am adding an amendment to the U.S. Constitution. There has to be a very good reason for changing either one.
Gov. Winthrop Rockefeller, the first Republican governor in Arkansas since Reconstruction, signed the FOIA into law on Feb. 14, 1967. The law fixed a serious problem the state had with government meetings at all levels taking place behind closed doors.
For example, if a school board wanted to fire the superintendent, the board could secretly meet at the local country club to discuss it without the media or the public present. Then the board would have a public meeting, a board member would make a motion to fire the superintendent and it passed unanimously without discussion. The public was left to wonder what was going on in the days before the FOIA.
There was one-party rule in Arkansas and the good old boys of that party ruled without having to worry about the public being able to question their actions.
Thanks to Gov. Rockefeller, Arkansas has one of the strongest freedom of information laws in the nation and it needs to stay that way. Each exemption must be carefully considered before becoming law. I had nagging questions about whether or not this exemption was carefully considered.
During a meeting in October, Larry Brady with the Administrative Office of the Courts gave a presentation to circuit clerks regarding the Arkansas Supreme Court's Administrative Order 19, which governs access to court records. Part of that order says people who are entitled to court records include "the parties to a case or their lawyers with respect to their own case."
It was apparent to me that Act 168 and Administrative Order 19 are in conflict. I'm not a lawyer, so I didn't know which one had to be followed. Act 168 does not forbid giving prisoners copies of their court records. It just says government officials like myself can deny their requests. My first inclination was to provide copies of their court records to anyone in the Arkansas Department of Corrections that requested them.
Because of the uncertainty, I consulted a couple of the finest legal minds in Saline County. Both agreed that when it comes to access of court records, Administrative 19 trumps Act 168.
So I have ordered my staff to send incarcerated people copies of their records if they request them. Understand, my office won't send them other people's records, just their own.
Some people may read this and think I'm a liberal. I'm not. I am a former chairman and treasurer of the Republican Party of Arkansas. I was a delegate to the Republican National Convention in 2008. I am a reserve deputy sheriff in Saline County. I ran for circuit clerk last year because the 10-year incumbent holding the job decided to put Dan Harmon, a former prosecutor who is now a convicted felon, back on the public payroll.
I don't believe in coddling prisoners, but I do strongly believe in right and wrong.
Probably 98 percent of the requests made by those incarcerated are made in pursuit of fighting boredom, not seeking justice. But if only 2 percent of those requests are legitimate how can anyone with a conscience reject them?
Public officials should always work to do what is legal and what is right. Sometimes those two are not always the same thing. In the case of giving people in prison their court records, right and legal are the same thing.