IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

________ DIVISION

RUSSELL R. RACOP PLAINTIFF

VS. CASE NO. __________________

CHIEF KENTON TREMAR BUCKNER, in his official capacity DEFENDANT

as custodian of certain records

AFOIA COMPLAINT AND REQUEST FOR HEARING

1. This is an appeal from a denial of rights under the Arkansas Freedom of Information Act

(“AFOIA”) pursuant to Arkansas Code Annotated § 25-19-107(a).

Parties, Jurisdiction, and Venue

2. Plaintiff Russell R. Racop is an adult citizen of the State of Arkansas, and he brings this

appeal as a matter of right under Ark. Code Ann. § 25-19-107, as he requested specific

public records, which Defendant refused to provide, entitling Plaintiff to a hearing in this

Court. See Ark. Code Ann.§ 25-19-107(b); see also Orsini v. State, 340 Ark. 665, 13

S.W.3d 167 (2000).

3. Defendant Kenton Tremar Buckner is the Chief of Police for the Little Rock Police

Department (“LRPD”), and he is sued in his official capacity.

4. The LRPD is an agency, department, branch, or similar entity of the City of Little Rock,

Arkansas. The City of Little Rock is a municipal corporation formed under the laws of

the State of Arkansas located in whole or in part within the geographical boundaries of

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 Pulaski County, Arkansas.

5. Jurisdiction and venue are proper in this Court pursuant to Ark. Code Ann. § 25-19-

107(a), which provides, in pertinent part, “Any citizen denied the rights granted to him or

her by this chapter may appeal immediately from the denial to... any of the circuit courts

of the appropriate judicial districts when an agency of a... municipality...is involved.”

Factual Background

6. On April 13, 2018, Plaintiff sent a request for public records, pursuant to the AFOIA,

to the LRPD. See Exhibit A.

7. Specifically, Plaintiff’ s request sought the following records:

a. Application of employment LRPD officer of Billy Brackins;

b. Request and permission for LRPD Officer Billy Brackins to post

a photograph in his LRPD uniform on his personal Facebook page
(see attachment 1);

c. Individual photograph of all current LRPD officers (see example

in attachment 2).

8. On April 17, 2018, City Attorney Tom Carpenter sent an email to Plaintiff denying in

part the AFOIA request pursuant to the “undercover law enforcement” exemption in Ark.

Code Ann. § 25-19-105(b)(10)(A). See Exhibit B.

9. Also, on April 13, 2018, Plaintiff sent another request for public records, pursuant to the

AFOIA, to the LRPD. See Exhibit C.

10. Specifically, Plaintiff’s request sought the following records:

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 a. Memorandums, letters, emails, or other form of written notification concerning my
FOI request made on April, 13, 2018 (see attachment) by any LRPD employee.

b. Incident or other report concerning Jason Butler taking a 16-year-old female to his
residence in the month of April 2018.

c. All complaints, from external or internal sources, made against Jason Butler
even if no disciplinary action resulted.

d. Any disciplinary actions taken against Jason Butler during his employment
with your agency.

e. Any photograph taken by LRPD of Jason Butler.

11. On April 23, 2018, Sgt. Rebecca Junkins with the LRPD FOI/Public Relations Unit sent

an email to Plaintiff denying in part an AFOIA he made on request pursuant to the

“undercover law enforcement” exemption in Ark. Code Ann. § 25-19-105(b)(10)(A). See

Exhibit D.

Claim: Failure to Properly Disclose Records under the AFOIA.

12. For nearly fifty-one years, Arkansas courts have liberally construed the AFOIA to

accomplish its broad and laudable purpose that public business be performed in an open

and public manner, and they have broadly construed the AFOIA in favor of disclosure.

See Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004); see also Laman v. McCord,

245 Ark. 401, 432 S.W.2d 753 (1968) (wherein the Arkansas Supreme Court had "no

hesitation in asserting our conviction that the Freedom of Information Act was passed

wholly in the public interest and is to be liberally interpreted to the end that its

praiseworthy purposes may be achieved").

13. Even the express AFOIA exemptions found in Ark. Code Ann. § 25-19-105 are to be

narrowly construed. See Hengel v. City of Pine Bluff, 307 Ark. 457,821 S.W.2d 761

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 (1991); see Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (holding that AFOIA

exemptions are to be narrowly construed “in a manner that favors disclosure”); also

Troutt Brothers, Inc. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992); Ragland v.

Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986); Laman v. McCord, 245 Ark. 401, 432

S.W.2d 753 (1968). When the scope of an exemption is unclear or ambiguous, the court

will interpret it in a manner that favors disclosure. See Young v. Rice, 308 Ark. 593, 826

S.W.2d 252.

14. Importantly, the Attorney General has explained, "[t]he public has a great interest in the

performance of police officers and other law enforcement officials, and in this case the

'cop on the beat' is just as important as the chief of police." See Op. Att'y Gen. No. 2008-

065 (citing Watkins & Peltz, "The Arkansas Freedom of Information Act" (4th ed. M&M

Press, 2004) at 207).

15. Whether there is "a public controversy related to the agency and its employees" is a

question of fact, but "the burden does not fall on the requester to prove the existence of

such an interest." See Op. Att'y Gen. No. 1998-210.

16. The Attorney General has explicitly noted that a "compelling public interest" is likely to

exist where a police officer violates "administrative rules and policies aimed at conduct

which could undermine the public trust and/or compromise public safety." See Op. Att'y

Gen. Nos. 2006-158 & 2006-106; see also Op. Att'y Gen. No. 2004-212 (noting that the

public has a compelling interest in knowing about misconduct by a public employee

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 exercising law enforcement powers, as it does in knowing how quickly and forcefully the

department responded to the misconduct).

17. Moreover, given that the stated purpose of the AFOIA is "making it possible for

[citizens] or their representatives to learn and to report fully the activities of their public

officials," where the records being requested could in and of themselves create a public

controversy, it is antithetical to the AFOIA to hide behind the lack of a current

controversy to deny a request. See Ark. Code Ann. § 25-19-102.

18. Plaintiff restates and realleges the facts and allegations contained in the preceding

paragraphs as if fully set out herein.

19. The LRPD is an agency, department, branch, or similar entity of a municipality, and, as

such, the public records of the LRPD are subject to the requirements of the AFOIA. See

generally, Daugherty v. Jacksonville Police Dep’t, 2012 Ark. 264, 411 S.W.3d 196.

20. The photographs sought by Plaintiff are “public records” within the meaning of the

AFOIA. See, e.g., Op. Att’y Gen. No.’s 1997-286, 1998-131, 2007-213.

21. Pursuant to the AFOIA, those records are subject to release, upon request, absent a

specific exemption. See) e.g., Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).

22. A “custodian” of certain records, as that term is used in the AFOIA, is a “person having

administrative control of that record.” Ark. Code Ann. § 25-19-103(1)(A); see also Fox

v. Perroni, 358 Ark. 251, 260, 188 S.W.3d 881, 887 (2004) (holding that a circuit judge

had administrative control over a personal check written by his law clerk for official

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 business, and the judge was therefore a “custodian” of that record, even where it was

held by the Bank and the law clerk).

23. Defendant Kenton Tremar Buckner is the custodian of police-department records,

photographs of LRPD Officers, maintained in personnel and other files, over which he

has administrative control.

24. The photographs of uniformed and plainclothes LRPD officers are not exempt from

disclosure under the undercover law-enforcement exemption because:

a. The exemption cited to deny release is applicable only to officers that are
currently designated as an undercover officer. That process requires LRPD to
file a change in status form with the Arkansas Commission on Law Enforcement
Standards and Training (“CLEST”) indicating that the officer has become an
undercover officer and records regarding that officer are so noted and exempt
from release under the AFOIA.

b. Arkansas Code Annotated § 25-19-105(f)(1) requires that no request to inspect,

copy or obtain copies of public records shall be denied on the ground that
information exempt from disclosure is commingled with nonexempt information.

c. LRPD officers that are assigned to undercover status have their employment and
salary shielded from release to the public and from websites such as Right to
Know – City of Little Rock Salaries, but non-undercover officer’s employment
and salary are not treated in the same manner as such personnel information is not
exempt under the AFOIA. See Exhibit E.

d. LRPD itself posts images of non-undercover officers on its Facebook, Twitter and
YouTube accounts. In fact, LRPD supplied copies of such in response to a FOI
request from Plaintiff and did not raise any objections.

e. If the intent of the legislature was to exempt all officer photographs, both
undercover and non-undercover officers, from being released they would have
included that specific language in the statute. As is often quoted in similar cases,
"The first rule in considering the meaning and effect of a statute is to construe it

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 just as it reads, giving the words their ordinary and usually accepted meaning in
common language”, see Sluder v. Steak & Ale of Little Rock. Inc., 361 Ark. 267,
272, 206 S.W.3d 213, 215(quoting Kyzar v. West Memphis, 360 Ark. 454, 201
S.W.3d 923 (2005)); and “The basic rule of statutory construction is to give effect
to the intent of the legislature, see Dep't of Parks and Tourism v. Jeske, 365 Ark.
279, 285, 229 S.W.3d 23, 27 (2006). Accord Wal-Mart Stores, Inc. v. D.A.N. Joint
Venture III, L.P., 374 Ark. 489, 490, 288 S.W.3d 627,629 (2008); “Where the
language of a statute is clear and unambiguous and susceptible of a sensible
construction,” the court will not resort to statutory construction, see Britt v. State,
261 Ark. 488, 495, 549 S.W.2d 84, 87 (1977); Statutes are construed “so that no
word is left void, superfluous or insignificant,”; “Every word is given meaning
and effect if possible. See Maples, 369 Ark. at 286, 947 S.W.3d at 911; Jeske, 365
Ark. at 285, 229 S.W.3d at 27. And “A cardinal rule in dealing with a statutory
provision is to give it a consistent and uniform interpretation so that it is not taken
to mean one thing at one time and something else at another time”, see Morris v.
McLemore, 313 Ark. 53, 55, 852 S.W.2d 135, 136 (1993).

25. Because the undercover law-enforcement exemption does not apply, Defendant’s

failure to provide the requested photographs is in violation of the AFOIA.

26. LRPD has routinely supplied news media with photographs of officers and only objected

as a retaliatory action towards Plaintiff as they have issues with his blogging about

problems and issues with LRPD on his Bad City of Little Rock and Bad Government in

Arkansas blogs. Furthermore, they have demonstrated a pattern of bias and non-

compliance with the AFOIA in regard to previous requests made by Plaintiff. See

Exhibit F.

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 Prayer for Relief

WHEREFORE, based on the foregoing, Plaintiff prays that this Court will:

27. Find that Defendants failed to comply with the AFOIA with respect to Plaintiff’s

request for copies of uniformed officer photographs in his April 13, 2018 requests.

28. Order Defendants fulfill Plaintiffs requests as required by state law.

29. Fix and assess a day the petition is to be heard within seven (7) days of the date of this

application, and hear and determine the case as required by Arkansas Code Annotated

section 25-19-107(b).

30. Order any other relief that this Court deems proper.

Respectfully submitted,

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 CERTIFICATE OF SERVICE

I, Russell R. Racop, hereby certify that a true and correct copy of this complaint and a summons
will be served by the Pulaski County Sheriff’s Department upon the Defendant as of the date of
issuance of the summons by the Clerk of this Court:

Kenton Tremar Buckner

Chief of Police
Little Rock Police Department
700 West Markham
Little Rock, AR 72201
Office: 501-371-4621
Fax: 501-371-4892
kbuckner@littlerock.gov

Russell R. Racop
301 Alamo Drive
Little Rock, AR 72211
501-352-0043
russracop@att.net