Ignorance or Arrogance: Why are Dexter Suggs, LRSD Violating the FOIA?

As reported by the Arkansas Times, Teresa Knapp-Gordon was among the multiple teachers from Jefferson Elementary who were investigated as part of Superintendent Dexter Suggs’ retaliatory witch hunt violation of the state whistle-blower law inquiry into summer programs.

In response, Ms. Gordon specifically requested, via the Freedom of Information Act, all documents related to the investigation.  Valerie Hudson from the LRSD responded:

Ms. Knapp Gordon, we are in receipt of your FOIA request. However, the records you seek are part of a current investigation and cannot be released at this time.

Undeterred, Ms. Gordon pointed out that the investigation was finished, so she reiterated her request.  This time, Dr. Suggs responded:

Ms. Knapp Gordon,
The records you seek are part of a current investigation and cannot be released at this time.

Oh, well that clears it up.  Or doesn’t at all. So, again, Ms. Gordon repeated the request, asking what justification there was under the FOIA to withhold records about her from her.  Ms. Hudson responded, apparently on behalf of Dr. Suggs:

Ms. Gordon,

Per Dr. Suggs, the records you seek are part of a current investigation and cannot be released at this time. Investigations regarding the conduct of an employee constitute employee evaluation/job performance records. If a document(s) meets the definition of employee evaluation/job performance record then the document(s) cannot be released unless ALL the following elements have been met:

1. The employee was suspended or terminated;

2. There has been a final administrative resolution of the suspension or termination proceeding;

3. The records in question formed a basis for the decision made in the determination to suspend or terminate the employee; and

4. The public has a compelling interest in the disclosure of the records in question.

Ark. Code Ann. § 25-19-105(c)(1); Op. Att’y Gen. 2008-065.

There has not been a final resolution of suspension or termination proceeding; therefore, the records cannot be disclosed at this time.

Which, ultimately, brings us to the unshakable conclusion that the LRSD is either ignorant of FOIA law or they are so arrogant as to think that they don’t have to comply.  You see, Ms. Hudson cited Ark. Code Ann. § 25-19-105(c)(1) as part of her explanation.  Which would be all well and good if Ms. Gordon were requesting records about someone else.  When a person is requesting records about themselves, however, the very next clause of the statute explains, “Any personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained or to that person’s designated representative.” Ark. Code Ann. § 25-19-105(c)(2).

At Ms. Gordon’s designation of me as her representative, I emailed the LRSD last night, explaining their mistake and demanding that the records be produced today.  As luck would have it, right in the middle of writing this post, I received the following email from Ms. Hudson, with Dr. Suggs copied on it as well:

[T]his email serves to acknowledge receipt of your FOIA request (4-13-15) below. It will be forwarded for compliance.

Assuming they comply today — which, let’s be honest, is a risky assumption on my part — what does that mean?  Why would they steadfastly refuse to comply with the request from Ms. Gordon, then capitulate immediately when confronted on it by an attorney? More to the point, are we to take such capitulation as a tacit admission that they knew they could not withhold the records and were just hoping that no one would press the issue?  Or is it more an admission of their own lack of understanding of the law?

I’m not sure which answer is more unsettling, given the current state of the LRSD and then need, now more than ever, for real transparency and accountability from the district.