Gillespie v. Brewer
Gillespie v. Brewer
Opinion of the Court
Appellant Cindy Gillespie, in her capacity as director of the Arkansas Department of Human Services ("Department"), appeals a Pulaski County Circuit Court order granting in part appellee Reed Brewer's request for documents under the Arkansas Freedom of Information Act (FOIA). On behalf of the Department, Gillespie argues that the trial court erred because the documents are not subject to disclosure under FOIA. Because the Department has already released the disputed documents, we dismiss the appeal as moot and do not address the merits of the arguments raised on appeal.
I. Factual and Procedural History
This appeal involves a request by Brewer pursuant to the Arkansas Freedom of Information Act seeking information contained in the personnel file of one of the Department's employees. Before addressing the actual request at issue in this appeal, we provide a short analysis of FOIA. FOIA sets forth a general policy for all public records to be "open to inspection" unless they are specifically exempt. Hyman v. Sadler for Ark. State Police ,
On July 2, 2018, Brewer filed a FOIA request with the Department requesting documents from the personnel file of a former employee, Leslie Rutledge,
On July 27, 2018, the Department provided Brewer with fifty-one pages of information from Ms. Rutledge's personnel file. The Department redacted and omitted information that it asserted was not subject to disclosure under FOIA. The documents redacted and omitted by the Department consisted of eight pages. These eight pages consisted primarily of a counseling statement
On August 9, 2018, Brewer filed a complaint in the Pulaski County Circuit Court, alleging that the Department had violated FOIA by failing to release certain personnel and employee-evaluation records related to Ms. Rutledge. His complaint raised three basic contentions: (1) Ms. Rutledge is currently the state's chief law enforcement officer and is entrusted with millions of taxpayer dollars; (2) she was formerly employed by the Department and was terminated by it; and (3) the Department's termination of Ms. Rutledge *63likely meant there was conduct that could have undermined the public trust, compromised public safety, or was possibly even illegal. Thus, Brewer took the position that there was a compelling public interest in releasing Ms. Rutledge's job-performance records since those records would shed light on how a high-level law enforcement official handled internal government workings and either did or did not comply with the public funds and responsibilities entrusted to her. He also claimed that because Ms. Rutledge was a public figure who had willingly put her job performance in the public spotlight, the release of these records would not be a clearly unwarranted invasion of personal privacy. The Department answered the complaint, asserting that Ms. Rutledge had not been terminated but had voluntarily resigned in 2007; that certain emails requested by Brewer were not available and had been automatically deleted from its computer system after five years of retention; and that the documents were not subject to FOIA.
The circuit court scheduled a hearing on the controversy between the parties. At the hearing, the court conducted an in camera review of the eight pages in dispute.
At the conclusion of the hearing, the trial court ruled from the bench. In its *64ruling, the court considered two separate subdivisions of FOIA,
13. The court is extremely concerned by the actions taken, or those failed to be taken, by the Department of Human Services relating to Ms. Rutledge's official personnel file.
....
Testimony was presented that DHS had received a similar FOIA request in 2014 and that DHS knew about the subject eight pages. From the record presented before the court, DHS did absolutely nothing, either in 2014 or at any point in time subsequent to 2014, to make an official correction, if an official correction was in fact warranted, to Ms. Rutledge's personnel record to show that she resigned as opposed to being terminated for "gross misconduct." At the hearing, DHS orally took the position, through both argument and testimony, that its written records in Ms. Rutledge's personnel file were false, and that Ms. Rutledge was not terminated for gross misconduct.
14. This court has no opinion and makes no finding or conclusion as to whether Ms. Rutledge resigned or was terminated in 2007.
15. This matter, however, is an action pursuant to the FOIA. The request was for the disclosure of official records. The official records indicate Ms. Rutledge was terminated for gross misconduct.
....
22. The refusal to provide the seven pages submitted for in camera review in the white envelope labeled "Performance Related" was in violation of the Arkansas FOIA. Such documents are open to inspection under the FOIA.
....
24. The eight pages ordered released herein are "personnel records."
25. Disclosure of the eight pages ordered released further the public interests established by the Arkansas Supreme Court in Stilley7 and Young .8
26. Disclosure of the subject eight pages does not constitute "a clearly unwarranted invasion of personal privacy."
27. The subject eight pages are open to public inspection pursuant to both A.C.A. § 25-19-205(b)(12) [sic] and A.C.A. § 25-19-105(c)(1).
28. It has been more than a month and a half since the FOIA request was submitted to the defendant. The Arkansas General Assembly has established an expedited procedure for the hearing and resolution of FOIA disputes. Accordingly, the defendant is ordered to email the subject documents to counsel for the plaintiff by 5:00 p.m. today.
Rather than requesting a stay of the trial court's order pending appeal, the Department provided the disputed documents to Brewer by the court-ordered deadline. The notice of appeal was timely filed the next day.
*65II. Analysis
On appeal, the Department argues that the trial court erred when it found that the Department had improperly withheld these seven pages from its FOIA response. We need not address the merits of the Department's argument, however, because we find the issues before us to be moot.
Generally, an issue is considered moot if any judgment or opinion issued by the court would have no practical effect upon a then existing legal controversy. Poland v. Poland ,
Here, the Department has already released the documents at issue to Brewer, and they cannot be unreleased even if we were to determine there was error. Accordingly, we hold that there is no live controversy for this court to resolve, and the case is moot. The Department, however, argues that mootness alone does not foreclose our consideration of issues on appeal because exceptions to the mootness doctrine apply. We disagree.
We have recognized two exceptions to the mootness doctrine: matters capable of repetition yet evading review and matters of substantial public interest that are likely to be litigated in the future. See Protect Fayetteville v. City of Fayetteville ,
The first exception, an issue capable of repetition yet evading review, arises when the justiciable controversy will necessarily expire or terminate before adjudication. See Wright v. Keffer ,
The second exception, matters of substantial public interest that are likely to be litigated in the future, applies when considerations of substantial public interest or the prevention of future litigation are present. See Duhon v. Gravett ,
The exceptions to the mootness doctrine are not automatic. We retain the choice "as to whether we may elect to settle an issue" that is moot. Duhon ,
Appeal dismissed.
Klappenbach and Vaught, JJ., agree.
Ms. Rutledge is currently the attorney general of the State of Arkansas.
He further agreed to an extension on non-personnel-file related emails until August 3, 2018.
Counseling statements are used to document violations of the employee-conduct standard in those situations in which the employee is not actually being disciplined.
A CLIP documents an employee's competency and performance in certain designated categories rating the employee's performance on a scale of 1 to 5, with a 5 meaning "always meets, and frequently exceeds performance expectations" and a 1 meaning "frequently fails to meet performance expectations."
While the disputed documents consisted of eight pages, on appeal, the Department challenges the court's ruling as to only seven of the pages.
The Department made this communication on workforce services forms made in connection with Ms. Rutledge's unemployment claims. The court ruled that the Department's failure to provide this one-page document was in violation of the Arkansas FOIA. The Department does not challenge the trial court's ruling with respect to this one-page document.
Stilley v. McBride ,
Young v. Rice ,
Reference
- Full Case Name
- Cindy GILLESPIE, in her Official Capacity as Director of Arkansas Department of Human Services v. Reed BREWER
- Cited By
- 3 cases
- Status
- Published