Motal v. City of Little Rock

2020 Ark. App. 308

603 S.W.3d 557

Ben MOTAL, Appellant

v.CITY OF LITTLE ROCK, Appellee

No. CV-19-344

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered: May 13, 2020

Ben Motal, pro se appellant.

Andrew Middlebrooks and Caleb Garcia, Office of the City Attorney, for appellee.

KENNETH S. HIXSON, Judge

Appellant Ben Motal appeals from an order dismissing his amended complaint filed pursuant to the Freedom of Information Act (FOIA), codified at Arkansas Code Annotated sections 25-19-101 through -110 (Repl. 2015). On appeal, appellant contends that the circuit court erred in dismissing his amended complaint because (1) appellee violated his rights under FOIA by refusing to allow him to inspect and copy the accident report in question (a public record) by taking a photograph using his personal cell phone, and (2) the appellee's decision to provide appellant with an electronic copy of the accident report after he filed suit does not moot this appeal. We reverse and remand.

I. Relevant Facts

Appellant filed his complaint and amended complaint for relief against appellee the City of Little Rock (the City). In his amended complaint, appellant alleged that he was the victim of a hit-and-run car accident on October 27, 2018. After his accident, he visited the Little Rock Police Department headquarters to inspect and copy the accident report. To that end, he alleged that he made an in-person request under FOIA to the custodian of the accident report to inspect and copy the report by taking a photograph using his personal cell phone. However, Ms. Tate, acting on behalf of the City, told him that although she could allow him to view the report, appellant was prohibited from taking any photographs of the pages with his cell phone according to the City's policy. Ms. Tate further stated that she could give him a copy of the report for a ten-dollar fee. After appellant refused and reiterated that he wished to inspect and copy the report using his cell phone as permitted under FOIA, Ms. Tate again denied his request. Thus, appellant filed his amended complaint requesting the circuit court to find that the City failed to comply with FOIA, order the City to allow him to copy the public records in question with his personal device, hold a hearing on the matter within seven days, grant him reasonable legal fees and costs, and grant all other just and proper relief.

In response, the City filed a motion to dismiss the amended complaint pursuant to Arkansas Rule of Civil Procedure 12(b)(6). The City argued that appellant's amended complaint did not support a claim under FOIA because appellant by his own admission did not request a copy of the report. It explained that Arkansas Code Annotated section 25-19-105(a)(2)(A) states that "a citizen may make a request to the custodian to inspect, copy, or receive copies of public records." The City argued that the "language of the statute uses ‘or’ not ‘and’ as [appellant] tries to contend in his pleadings that he is allowed ‘to inspect and copy the report using his own personal device.’ " It further argued that appellant had made a request only to inspect the actual record, and the statute did not permit him to take a photograph of the document with his personal cell phone. Moreover, the City stated that it had offered him a copy in accordance with the statute, which appellant refused. Finally, the City argued that the amended complaint was moot because appellant had already received a copy of the accident report from the deputy city attorney after appellant filed suit, as evidenced by an attached email.

Appellant filed his response to the motion to dismiss. He argued that the City's argument was "based on the false assumption that receiving a copy of a record that has been prepared by a public official is the only type of request that can be made under the FOIA." (Emphasis in original.) Appellant argued that the City violated his right to inspect and copy the accident report with his own personal device as authorized by FOIA. He further argued that the City's suggestion that the use of the conjunction "or" limits a citizen from making more than one of the three types of requests under FOIA is without merit because the legislature did not intend for the right to inspect, copy, and receive copies to be mutually exclusive of each other. He contended that although the City allowed him to view the record, it failed to allow him to copy the report in flagrant violation of FOIA.

At the February 7, 2019, hearing on the merits of appellant's amended complaint and on the City's motion to dismiss, the parties stipulated that the facts alleged in appellant's amended complaint were not in dispute. Instead, the parties requested that the circuit court determine whether FOIA allowed appellant to take a photograph of a document using his personal cell phone and whether appellant's amended complaint should be dismissed as moot.

Appellant acknowledged that he had subsequently received a copy of the accident report at issue and that the City had waived its ten-dollar fee. However, appellant argued that his claim was not moot because his right to copy is independent of his right to receive a copy under the statute. He further argued that he wanted to verify that the copy provided was correct. The parties further stipulated to the facts alleged in the amended complaint, and appellant asked the circuit court to find, based on those stipulated facts, that the City had failed to comply with FOIA, order that the City permit him to copy the records using his cell phone, and grant him reasonable legal fees and costs. The City argued, as it did in its motion to dismiss, that appellant failed to request a copy of the accident report and that appellant had no right to use his own device to make copies or photographs under FOIA. It claimed that it offered to provide appellant a copy for ten dollars in a manner permitted under the statute, but appellant refused. The City further explained that it has an obligation to make sure a record is an actual, official government record and that a picture taken by a third party is something that is easily editable.

At the conclusion of the hearing, the circuit court orally made the following findings:

And if the Legislature wanted to give you the right to photograph public records, they could have easily used the word "photograph." They didn't. They used "copy" and "copying." And when I think of a "copy," I think of running it through either a photocopying machine or a facsimile machine that has a "copy" feature on it, or you can scan it in, and transmit it electronically as a "copy." But a photograph is an entirely different animal. A photograph can be Photoshopped®, it can be altered, it can be -- you know, half of it can be deleted. There's a lot of things I can do with a photograph that I cannot do with an official copy because I -- once I've got a copy, I've got a piece of paper with that document, and the contents of the document, located on that sheet of paper. But I get a photograph on my cell phone, I can Photoshop® it, I can do all kinds of things to that document to make it appear completely different than the official document as it leaves the hands of the record keeper. And if the Legislature had wanted to use the word "photograph" to give a citizen the right to come into the courthouse, come into the city, come into the police department and photograph documents, they should have said so, but they didn't. And I'm not willing I am a big believer in FOI. You know, I've got you know, I've got cases of record where I've supported the FOI. I've gotten onto the Chief of Police for the City of Little Rock for not complying with FOI.

....

But in this case, it said "copy," or "copying," "receive copies." It denotes an entirely different animal than what you want. Your animal is different than the animal the City is required to give you, and provide you, and allow you to utilize and receive, than a photograph. Different thing. And if they wanted you to -- wanted you to photograph it, fine, I'm all for it, but photographs are different than copies. And you look up the definition of the word "copy," it's different than "photograph." And it is ... splitting hairs maybe in your mind, but I'm not willing to expand FOI; not my job. It's just to interpret and to enforce the law as it is written. I'm not one that -- I take it upon myself to try to expand ... the Legislature, if they want to do that, they can.

....

Well, I don't find that the City in fact, I find that the City did not violate FOI. I don't think that they failed to comply with the FOI. I think they -- they requested that you pay a ten-dollar fee for a copy. You chose not to do that. You wanted to photocopy it. I -- I'm not sure you have that right under FOI. So -- and the statute does not provide anywhere -- I read it last night and I -- and I looked through it pretty closely. I don't see anywhere that it says that you can make a photograph of records.... And under the circumstances, without something more, you know, to guide me and to tell me, I -- I just don't think that the lawsuit, number one, has merit. And, number two, I think it's moot, at this particular point, in that you have been provided a copy of your accident report, at this particular juncture. So, at this point, I would say this matter is at an end.

After the hearing, appellant filed a supplemental brief. Appellant argued that the plain meaning of "copying" a record included taking a photograph or creating an image of the record. Additionally, appellant argued that the right to "inspect" a record included the right to photograph or create an image of such record. Therefore, he requested that the circuit court grant the relief he requested in his amended complaint.

The circuit court subsequently filed a written order on February 13, 2019, making the following findings:

Plaintiff, Ben Motal filed a lawsuit against the Defendant, City of Little Rock ("City"

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