Watkins v. Dale
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Cite as 2011 Ark. App. 385
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA10-876
Opinion Delivered May 25, 2011
CONNIE WATKINS
APPELLANT
APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT,
[NO. CIV-2010-103 (JF)]
V.
HONORABLE RALPH WILSON, JR.,
JUDGE
KIMBERLY DALE
APPELLEE
REVERSED AND REMANDED
RITA W. GRUBER, Judge
This case arises out of appellant Connie Watkins’s August 2007 conviction in district
court for disorderly conduct, which was affirmed on de novo appeal to circuit court and on
appeal to this court. Watkins v. State, 2010 Ark. App. 85, ___ S.W.3d ___. Appellee Kimberly
Dale is the Deputy City Attorney for Paragould and served as the Greene County deputy
prosecutor during appellant’s trials. On March 26, 2010, appellant filed a pro se petition and
complaint against appellee pursuant to the Arkansas Freedom of Information Act (FOIA), Ark.
Code Ann. §§ 25-19-101 et seq. (Supp. 2009). While admitting that appellee allowed her to
inspect all records pertaining to her case and that appellee provided copies of documents that
she requested, appellant alleged in her petition that appellee violated FOIA by failing to
provide copies of “[e]xculpatory handwritten notes.” She also alleged that appellee’s informing
her that appellee was not required to provide work product and personal notes was a violation
Cite as 2011 Ark. App. 385
of FOIA. The trial court dismissed the petition, and appellant brought this appeal. We reverse
and remand for a hearing.
Appellant contends in her petition and on appeal that she made a detailed FOIA
request on September 15, 2009, for information relating to various cases surrounding her
disorderly-conduct conviction. Appellee responded to the request, stating that the information
had been made available by other parties under previous FOIA requests. Appellee also said
that if appellant felt she still had not received certain items that they could arrange a time for
her to inspect appellee’s file. On September 23, 2009, appellant inspected appellee’s file
relating to appellant’s conviction. Appellee explained that appellant could look at the entire
file and tag the items she wanted copied (including any work product), but she told appellant
that she was not required to provide work product and her own notes pertaining to the trial.
Appellant admits that appellee copied all of the tagged documents and provided them to
appellant except for certain allegedly “[e]xculpatory handwritten notes” contained in the file.
Appellant insisted in a March 7, 2010, letter to appellee that she provide to appellant
all records and notes, “including personal notes and your work product.” Appellant’s March
request included requests for explanations and records to support various statements appellee
made in trial, presumably in her statements or arguments to the court; records of discussions
with various witnesses; information about the basis for appellee’s decision to prosecute
appellant; appellant’s arrest report and interviews with the police department; notes from
meetings possibly held regarding her criminal case; and information from discussions with co-
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counsel about appellant’s case. Appellee responded that her decision to prosecute was based
on previously provided information and her understanding of the criminal statutes and that
the information had already been provided by her office or by the police department, the city,
or the municipal league through past FOIA requests. Not satisfied, appellant filed a petition
and complaint against appellee with the Greene County Circuit Court.
Appellant’s petition set forth in great detail alleged testimonial statements and
statements of appellee from appellant’s criminal trial. She alleged that these statements
“indicated existence of documents or statements” to support these statements and that she was
entitled to these alleged supporting documents in her FOIA request. She detailed her FOIA
request and stated that appellee allowed her to view all of appellee’s records from her criminal
trial but alleged that the information made available to her did not contain “incriminating
evidence” or support for the prejudicial statements made by witnesses and appellee in her trial
or any basis for appellee’s decision to prosecute her. She also alleged that the copies she
received did not contain the “[e]xculpatory handwritten notes” which she had tagged during
her review of appellee’s file. Finally, appellant asked the court to require appellee to produce
these documents or produce an affidavit stating that the items she requested did not exist.
Appellee filed an answer and alleged twelve affirmative defenses, including that
appellant failed to state a claim for which relief could be granted under Ark. R. Civ. P.
12(b)(6), that appellant was not deprived of any right or interest protected under FOIA, and
that appellee had complied with the provisions of FOIA. The trial court informed the parties
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Cite as 2011 Ark. App. 385
that it was treating appellee’s affirmative defenses as a motion to dismiss and gave appellant
twenty days to respond. The court later extended the deadline at appellant’s request. Appellant
responded, and on June 3, 2010, without a hearing, the court dismissed appellant’s petition.
The court found that appellant had been provided with a complete copy of the two-volume
transcript of her criminal trial in circuit court and that appellee had fully complied with
appellant’s FOIA request to her. Therefore, the court determined, the case was moot. The
court further found that appellant’s pleadings and responses filed in response to appellee’s
motion to dismiss were “without merit, frivolous, and irrelevant” and that appellant had
already received the relief to which she was entitled. The court then noted that it perceived
appellant to be a dissatisfied criminal defendant who disagreed with her conviction.
Appellant contends on appeal that the circuit court erred in dismissing her petition,
that the court did not properly apply FOIA, and that she was entitled to a hearing. When
reviewing a circuit court’s order granting a motion to dismiss pursuant to Rule 12(b)(6), we
treat the facts alleged in the complaint as true and view them in the light most favorable to
the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In viewing the
facts in the light most favorable to the plaintiff, the facts should be liberally construed in the
plaintiff’s favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere
conclusions, in order to entitle the pleader to relief. Id. Our standard of review for the
granting of a motion to dismiss is whether the circuit court abused its discretion. Doe v. Weiss,
2010 Ark. 150, at 4.
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FOIA states that “[e]xcept as otherwise specifically provided by [FOIA] or by laws
specifically enacted to provide otherwise, all public records shall be open to inspection and
copying by any citizen of the State of Arkansas during the regular business hours of the
custodian of the records.” Ark. Code Ann. § 25-19-105(a)(1)(A). FOIA does not require a
custodian to “compile information or create a record in response to a request made.” Ark.
Code Ann. § 25-19-105(d)(2)(C).
Appellant admits in her petition that appellee made her file available for inspection and
provided copies of all documents except certain of appellee’s handwritten notes. Appellant’s
argument is that she was entitled to the work product, including these handwritten notes, and
that she was entitled to documents or reports explaining the basis for certain statements made
by witnesses and appellee in appellant’s criminal trial. With regard to her request for appellee
to provide statements or reports explaining the basis for testimony in trial, appellant is simply
mistaken. FOIA requires no such thing. Appellant cites no provision in FOIA that requires
a prosecutor to create reports about her mental impressions, purposes, or motivations in
pursuing a conviction or reports speculating about the mental impressions, purposes, or
motivations of trial witnesses. Indeed, FOIA specifically provides that a custodian is not
required to “compile information or create a record in response to a request made.” Ark.
Code Ann. § 25-19-105(d)(2)(C).
With regard to the alleged “[e]xculpatory handwritten notes,” however, we remand
for a hearing. FOIA provides that “[u]pon written application of the person denied the rights
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Cite as 2011 Ark. App. 385
provided for in this chapter, or any interested party, it shall be mandatory upon the circuit
court having jurisdiction to fix and assess a day the petition is to be heard within seven (7)
days of the date of the application of the petitioner, and to hear and determine the case.” Ark.
Code Ann. § 25-19-107(b). Although appellant requested a hearing in her petition, the court
never held one. In its order dismissing appellant’s petition, the court found that all documents
requested had been provided and that FOIA did not require custodians to create records or
answer questions in response to a request but only to make existing records available for
inspection and copying. The court did not mention the allegedly “[e]xculpatory handwritten
notes” that appellee did not provide to appellant nor make a finding regarding why they did
not fall within FOIA’s ambit. Having not reviewed these notes, we do not know if they do
or do not. Therefore, we reverse and remand for the trial court to hold a hearing and conduct
an in camera review of these handwritten notes to determine if they fall within one of the
exceptions from FOIA set forth in Ark. Code Ann. § 25-19-105(b). If they do not, appellee
must provide appellant with copies of the handwritten notes.
Reversed and remanded.
G LOVER and H OOFMAN , JJ., agree.
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