Arkansas Supreme Court justice wins temporary injunction in public records case

The Arkansas Supreme Court building surrounded by construction in 2022. (John Sykes/Arkansas Advocate)

A Pulaski County circuit judge on Friday temporarily blocked the release of emails between an Arkansas Supreme Court justice and a former court employee.

Mark Friedman, senior editor with Arkansas Business, submitted a Freedom of Information Act request last month to the Administrative Office of the Courts and the Office of Professional Conduct seeking all communications after January 2023 between former OPC director Lisa Ballard and several individuals, including Associate Justice Courtney Rae Hudson.

Ballard was one of three employees who left the OPC in short succession earlier this year . Ballard’s personnel file, which was obtained by the Advocate in May through a Freedom of Information Act request, did not include a letter of resignation or list a reason for termination .

In a complaint filed Friday, Hudson argued she is the custodian of the emails requested by Friedman under the FOIA’s definition and has administrative control over the requested records, not the AOC.

“As such, the Arkansas Freedom of Information Act dictates that the request must be directed to Justice Hudson so she, and she alone, can respond as appropriate under the Arkansas Freedom of Information Act,” the complaint stated.

The acting director of the OPC, Charlene Fleetwood, intended to respond to Friedman that the requested records are exempt from the FOIA, the complaint said, but five of Hudson’s fellow justices overruled Fleetwood and said any responsive records should be released.

“Like Fleetwood, these five Supreme Court justices are not custodians of the requested documents and do not have authority to turn them over pursuant to FOIA,” Hudson argued in a complaint she filed Friday seeking an injunction to prevent the documents’ release.

The actions of the other justices bypassed Hudson’s rights under the FOIA, her complaint said.

“Additionally, the ‘vote’ of the Justices was wholly improper because, in essence, the Court acted to determine an issue of statutory construction without jurisdiction and without any pending appeal,” Hudson’s complaint said. “Worse, because the Court does not have any pending appeal before it on this issue the Court’s ‘decision’ will not be memorialized in any Court opinion.

“In short, the Court lacks any authority whatsoever under which to order Defendants to respond to the request in a particular way or to order Justice Hudson to turn over documents,” the complaint added.

Circuit Judge Patricia James granted Hudson’s request for a preliminary injunction pending a hearing on her additional request for a permanent injunction preventing any of the defendants from releasing any materials in response to Friedman’s FOIA request.

Named as defendants are Fleetwood, Arkansas Administrative Office of the Courts Executive Director Marty Sullivan, the AOC and the Office of Professional Conduct.