                                    Cite as 2016 Ark. App. 132


                    ARKANSAS COURT OF APPEALS
                                          DIVISION I
                                         No. CV-15-520
                                                Opinion Delivered   March 2, 2016

TIMOTHY HOLLIS                           APPEAL FROM THE WASHINGTON
                               APPELLANT COUNTY CIRCUIT COURT
                                         [NO. CV-13-956-7]
V.
                                 HONORABLE DOUG MARTIN,
FAYETTEVILLE SCHOOL DISTRICT     JUDGE
NO. 1 OF WASHINGTON COUNTY,
ARKANSAS; TIM HUDSON; JIM
HALSELL; BRYN BAGWELL; JUSTIN
EICHMANN; TRACI FARRAH;
SUSAN HEIL; STEVE PERCIVAL;      REVERSED AND DISMISSED
VICKI THOMAS; and STEVE JACOBY
                       APPELLEES

                            RAYMOND R. ABRAMSON, Judge


       This case is a companion to Hollis v. Fayetteville School District, 2016 Ark. App. 137

(Hollis III), also decided today. These two appeals arise out of appellant Timothy Hollis’s

Freedom of Information Act (the FOIA) requests made to appellee Fayetteville School

District (collectively with its superintendent and individual board members, the district). In

this case, the circuit court found that Hollis’s FOIA requests were not specific enough to

allow the district to locate the requested records with reasonable effort. As a result of this

finding, the circuit court granted the district’s renewed motion for a protective order. This



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appeal challenges both rulings. We hold that the circuit court lacked jurisdiction when it

granted the motion for a protective order. Accordingly, we reverse and dismiss.

                              I. Background and Procedural History

       Hollis’s employment at Fayetteville High School was terminated by the board in

February 2013. He sought judicial review of the termination pursuant to the Arkansas

Teacher Fair Dismissal Act (TFDA). The termination was upheld by the circuit court, and

we affirmed. 1 Hollis v. Fayetteville Sch. Dist., 2015 Ark. App. 544, 473 S.W.3d 45 (Hollis I).

       On August 22, 2014, after the circuit court had upheld his termination and the record

had been filed with this court, Hollis propounded some seventeen FOIA requests to the

district. At the time, Hollis was a candidate for a position on the school board. Specifically,

the three requests at issue are as follows:

               10. Copies of all emails and other communications between the attorneys for
       Fayetteville Public Schools and the financial office, financial officers, treasurer or any
       similar department or employee during the previous one (1) year.

               11. Copies of all emails and other communications between the human
       resources department for Fayetteville Public Schools and the financial office, financial
       officers, treasurer or any similar department or employee during the previous one (1)
       year.

              12. Copies of all emails and other communications between Vicki Thomas
       [the district’s former superintendent] and the financial office, financial officers,
       treasurer or any similar department or employee during the previous one (1) year.

       On September 4, 2014, the district responded to some of the requests, but also noted

it was renewing a request for a protective order with respect to requests numbers 10, 11,

and 12 that it had filed in Judge Martin’s court. That same day, the district filed a renewed



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           Circuit Judge Doug Martin presided over the termination case.
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motion for a protective order under the same docket number as the termination case. The

district argued that these specific requests were overbroad and unduly burdensome,

particularly with respect to the request for all emails by or to “the financial office, financial

officers, treasurer or any similar department or employee.” The district also argued that the

request for all emails would require the production of hundreds of thousands of emails

requiring individual review by counsel to determine if any such emails contained

information that would constitute an unwarranted invasion of personal privacy under Ark.

Code Ann. § 25-19-105(b)(12) (Repl. 2014), or contained protected educational records

under federal law. The district further argued that request no. 10 also required the disclosure

of information protected by attorney-client privilege.

       Hollis responded to the renewed motion for a protective order, arguing that the

FOIA requests at issue were not submitted until over four months after Judge Martin had

upheld his termination and, therefore, were not a collateral matter over which the court

retained jurisdiction. He further asserted that the FOIA did not provide exceptions for

information protected by the attorney-client privilege or for requests that the governmental

entity deemed “overbroad and unduly burdensome.” Hollis asked that the motion be

denied.

       On September 19, 2014, Hollis filed suit in Circuit Judge Cristi Beaumont’s court

(the FOIA case) against the district to force compliance with his FOIA requests. Hollis

asserted that the district’s earlier, original request for a protective order was denied by Judge

Martin and because the district did not appeal that ruling, that order was now final. Hollis

also requested a hearing.

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       On September 26, 2014, the district filed a motion to dismiss the FOIA complaint

pursuant to Ark. R. Civ. P. 12(b)(8) on the basis that the precise issues were also pending

in Judge Martin’s court. The district repeated its arguments made in requesting the

protective order from Judge Martin. The district also argued that the documents subject to

disclosure under the FOIA could still be exempt if protected by order or rule of court.

       In his response to the motion to dismiss the FOIA case, Hollis argued that Judge

Martin did not retain jurisdiction over the FOIA requests because the requests were not

collateral to the matters relating to his dismissal. He also argued that the FOIA exemption

for documents protected by order or rule of court does not prevent disclosure of those

documents to a party to the suit, only to the public. He further asserted that the FOIA did

not provide exceptions for information protected by the attorney-client privilege or for

requests that the governmental entity deemed “overbroad and unduly burdensome.”

       By letter dated December 1, 2014, Hollis’s attorney requested a hearing from Judge

Beaumont within seven days as provided in Ark. Code Ann. § 25-19-107.

       On December 4, 2014, Judge Martin held a conference call and requested the parties

to brief the issue of whether the district’s renewed request for a protective order was

“collateral” to the issues in Hollis I such that the court could exercise jurisdiction. The parties

filed their respective briefs on December 15, 2014. Judge Martin issued a letter opinion on

December 18, 2014, finding that he had jurisdiction to rule on the district’s renewed

motion.




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       Also on December 18, 2014, Judge Beaumont dismissed Hollis’s complaint because

the issue of the release of the same information was pending in Judge Martin’s court prior

to Hollis filing his complaint.

       A hearing on the district’s renewed motion for a protective order was held before

Judge Martin on January 28, 2015, and the court took the matter under advisement. The

court issued its letter opinion on February 3, 2015. The court first rejected the district’s

claim of exemption for information protected from disclosure by order or rule of court

because there was no prior court order or rule entered by it. The court also rejected the

claimed exemption for material covered by the attorney-client privilege, noting that our

supreme court had ruled that neither attorney-client privilege nor attorney work product

created exemptions to the FOIA. Judge Martin noted that, contrary to the district’s

argument, there was no relevancy requirement in the FOIA. Although the court found that

the district’s claim that Hollis’s requests were overbroad and unduly burdensome was not a

proper response to Hollis, the court also found that the district’s request that Hollis narrow

his requests was a proper response under the FOIA. According to the circuit court, the issue

then became whether Hollis’s requests were “sufficiently specific to enable the custodian to

locate the records with reasonable effort.” The court found that these requests were not

sufficiently specific to enable the custodian to locate the records with reasonable effort, as

required by Ark. Code Ann. § 25-19-105(a)(2)(C). Specifically, the court found that the

“the financial office, financial officers, treasurer or any similar department or employee”

language in the requests precluded them from being sufficiently specific. Because Hollis

refused the district’s request to narrow the nonspecific FOIA requests, Judge Martin

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concluded that the district had properly responded to Hollis’s FOIA requests and that the

renewed motion for protective order should be granted. This appeal followed.



                                   II. Standard of Review

       In a FOIA case, the standard of review is whether the circuit court’s findings were

clearly erroneous or clearly against the preponderance of the evidence. Pulaski Cty. v. Ark.

Democrat-Gazette, Inc., 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007). The issue of the

applicability of the FOIA is a question of statutory interpretation, which we review de novo,

because it is for this court to determine the meaning of a statute. Harrill & Sutter, PLLC v.

Farrar, 2012 Ark. 180, 402 S.W.3d 511.

                                       III. Discussion

       We start with a brief discussion of the FOIA. The FOIA provides that an Arkansas

citizen may make a request to the custodian of public records to “inspect, copy, or receive

copies of public records.” Ark. Code Ann. § 25-19-105(a)(2)(A). For a record to be subject

to the FOIA and available to the public, it must (1) be possessed by an entity covered by

the Act, (2) fall within the Act’s definition of a public record, and (3) not be exempted by

the Act or other statutes. Daugherty v. Jacksonville Police Dep’t, 2012 Ark. 264, 411 S.W.3d

196. If the citizen’s request for the records is denied, he or she may bring suit in circuit

court to challenge the denial. Ark. Code Ann. § 25-19-107(a). Here, there is no dispute

that the requested records are public records under the FOIA. Although the district argued

that some of the records were protected from disclosure by attorney-client privilege or other

exceptions, Judge Martin rejected those arguments, and the district did not cross-appeal.

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       In the circuit court case that spawned both this appeal (Hollis II) and Hollis I, the

district filed a renewed motion for protective order under the same case number, and before

the same circuit judge (Judge Martin), while the Hollis I appeal was pending. In Hollis I, this

court addressed whether the district violated the TFDA when it terminated Hollis’s teacher

contract for insubordinate conduct. The motion that the district filed while the appeal was

pending in Hollis I was fueled by Hollis’s letter requests for information under the FOIA,

and it was based on Arkansas Rule of Civil Procedure 26(c).

       The problem is that our supreme court has embraced the view that the Freedom of

Information Act and the discovery rules under the Arkansas Rules of Civil Procedure

operate independently. See Berry v. Saline Mem’l Hosp., 322 Ark. 182, 185, 907 S.W.2d 736,

738 (1995) (“The FOIA at times provides greater disclosure than do the discovery

procedures afforded by the Arkansas Rules of Civil Procedure.”). The FOIA, in other

words, when properly invoked, provides an avenue for obtaining information that is separate

from the rules of civil procedure. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d

275 (1990) (protective order obtained under discovery rules does not prevent availability of

information under the FOIA). The essential legal question presented in this appeal is

whether the district commenced a FOIA action by filing a “renewed motion for protective

order.” The answer is no for two reasons. First, the district is the custodian of the records

sought. The district’s second attempt to obtain a protective order did not formally

commence a FOIA case because, by statute, only an Arkansas citizen may request to inspect

or copy public records or seek review of the denial of such a request. Ark. Code Ann. §§

25-19-105(a)(1)(A) & 25-19-107(a).

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       Second, because Hollis I was on appeal to this court when the unauthorized FOIA

Rule 26 motion was litigated, we hold that the circuit court lacked jurisdiction to enter the

protective order. We therefore reverse and dismiss this appeal without deciding the merits

of the circuit court’s decision. Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007). The

parties’ dispute over access to information under Arkansas’s Freedom of Information Act

may, however, be fully litigated under the law before Judge Beaumont for the reasons stated

in the companion appeal to this case. See Hollis III, supra.

       Reversed and dismissed.

       HARRISON and GLOVER, JJ., agree.

       Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Bryce G. Crawford, for

appellant.

       Friday, Eldredge & Clark, LLP, by: Christopher Heller and R. Christopher Lawson, for

appellees.




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