Randall Thomas McArty v. Henry Morgan, Prosecuting Attorney

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

May 20, 2004

RANDALL THOMAS MCARTY

Appellant

v.

HENRY MORGAN,

PROSECUTING ATTORNEY

Appellee

03-293

APPEAL FROM THE CIRCUIT COURT OF CLARK COUNTY, NO. CV 2002-208, HONORABLE JOHN A. THOMAS, JUDGE

REVERSED AND REMANDED

Per Curiam

In 1993, appellant was convicted of murder in the first degree and sentenced to life imprisonment. We affirmed. McArty v. State, 316 Ark. 35, 871 S.W.2d 346 (1994). He subsequently filed a petition in the trial court contending that the prosecuting attorney, Henry Morgan, had failed to provide him with copies of the autopsy photographs and the medical examiner's diagrams from his criminal trial that he had requested pursuant to the Freedom of Information Act (FOIA), codified as Ark. Code Ann. § 25-19-101 et seq. The trial court dismissed the petition on a finding that the prosecutor had made the material available at a reasonable fee. From that order comes this appeal.

Appellant now claims that the trial court erred by not ordering that he be provided the requested documents and by not holding a hearing on the matter. In an affidavit signed by appellee, he stated that appellant wrote to him requesting that a copy of his entire case file be sent to him in prison. According to appellee, the file is "very voluminous and in storage." Subsequent to that written request, appellant's mother, Patsy Sorrells, went to appellee's office to obtain a copy of said file. Appellee informed Sorrells that she could copy the file for a reasonable fee. Appellant's mother stated that she could not afford to pay the fee. On appeal, appellant claims that his mother's request for this information "has nothing to do with [my] written request for copies of public record."

According to § 25-19-107(b):

Upon written application of the person denied the rights 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.

Given the language of this provision and the dispute over whether appellant's mother was acting on his behalf, we hold that appellant is entitled to a hearing to determine whether the FOIA was violated.

Reversed and remanded.