Oscar Stilley v. Wanda McBride

Oscar STILLEY v. Wanda McBRIDE

97-628                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 19, 1998


1.   Appeal & error -- doctrine of mootness -- case addressed --
     issue of public interest presented. -- The supreme court does
     not render advisory opinions nor answer academic questions;
     under Arkansas law, a case becomes moot when any judgment
     rendered would have no practical effect on an existing legal
     controversy; however, when the case involves the public
     interest, or tends to become moot before litigation can run
     its course, or a decision might avert future litigation, the
     supreme court has, with some regularity, refused to permit
     mootness to become the determinant; where the case presented
     an issue of public interest, the supreme court agreed to
     address and decide it.

2.   Statutes -- Arkansas Freedom of Information Act -- disclosure
     of personnel records. -- The fact that section 25-19-
     105(b)(10) of the Arkansas Freedom of Information Act exempts
     disclosure of personnel records only when a clearly
     unwarranted personal privacy invasion would result, indicates
     that certain "warranted" privacy invasions will be tolerated;
     thus, section 25-19-105(b)(10) requires that the public's
     right to knowledge of the records be weighed against an
     individual's right to privacy; because section 25-19-
     105(b)(10) allows warranted invasions of privacy, it follows
     that when the public's interest is substantial, it will
     usually outweigh any individual privacy interests and
     disclosure will be favored. 

3.   Statutes -- FOIA -- federal court's standard adopted by
     Arkansas -- substantial privacy interest exists in records
     revealing intimate details of person's life. -- While
     recognizing the federal FOI Act personnel exemption is not
     identical to Arkansas's, the supreme court has adopted the
     federal court's standard of balancing the public's and
     individual's privacy interests when deciding whether personnel
     information should be disclosed under  25-19-105(b)(10); the
     federal courts have found that a substantial privacy interest
     exists in records revealing the intimate details of a person's
     life, including any information that might subject the person
     to embarrassment, harassment, disgrace, or loss of employment
     or friends.

4.   Statutes -- FOIA -- behaviors contained in records regarding
     officer promotions is a substantial personal-privacy interest
     -- release of which would result in unwarranted invasion of
     officer's personal privacy. -- The supreme court has held that
     release of embarrassing behaviors potentially contained in
     records regarding officer promotions touches on the intimate
     details of an officer-candidate's life, and is a substantial
     personal-privacy interest and would result in a clearly
     unwarranted invasion of the officer's personal privacy.

5.   Statutes -- federal FOIA -- Supreme Court determined
     disclosure of employees home addresses constituted clearly
     unwarranted invasion of privacy. -- The Supreme Court decided
     in the case of Department of Defense v. FLRA, 510 U.S. 487
     (1994), that the disclosure of the home addresses of federal
     civil service employees constituted a "clearly unwarranted
     invasion of the employees personal privacy" within the meaning
     of the federal FOI Act, 5 U.S.C.  552(b)(6).

6.   Statutes -- federal FOIA -- disclosure of addresses -- duty of
     review. -- In FLRA the Supreme Court determined that its duty
     on review of an FOI case was to weigh the privacy interest of
     bargaining-unit employees in nondisclosure of their addresses
     against the only relevant public interest in the FOI balancing
     analysis -- the extent to which disclosure of the information
     sought would "shed light on an agency's performance of its
     statutory duties" or otherwise let citizens know "what their
     government is up to"; the Court determined that, while the
     disclosure of the addresses might allow the unions to
     communicate more effectively with employees, such disclosures
     would reveal little or nothing about the employing agencies or
     their activities. 
7.   Statutes -- federal FOIA -- release of employee's addresses to
     unions -- Supreme Court determined that individual privacy
     interest protected by nondisclosure was significant. -- After
     finding the relevant public interest supporting disclosure of
     home addresses to the unions was negligible, at best, the
     Court in FLRA, upon weighing the interest of bargaining-unit
     employees in nondisclosure of their home addresses, determined
     that the employees' privacy interest in nondisclosure was
     substantial. 

8.   Statutes -- FOIA -- exemptions from disclosure under Act
     narrowly construed -- city had burden of proof. -- Under
     Arkansas's FOI Act, records kept in the scope of public
     employment are presumed to be public records, but even so,
     such a record may be exempt from disclosure as is provided
     under  25-19-105(b)(10); however, any exemption from
     disclosure is to be narrowly construed; thus, here the city
     had the burden to show that the officers' privacy interests
     outweighed that of the public's under the circumstances
     presented. 

9.   Statutes -- FOIA -- city met burden of proof -- two concerns
     voiced by officer. -- The city undertook and met its burden at
     the circuit court hearing by presenting the testimony of a
     police officer who voiced two valid concerns relating to the
     disclosure of police officers' addresses to the public.

10.  Statutes -- FOIA -- purpose of FOIA clear -- appellant's
     reason for FOI request not in line with that purpose --
     circuit court's decision denying FOI request affirmed. --
     Where appellant's sole reason for requesting the officers'
     addresses was to utilize a cheaper method of obtaining service
     of process on the officers, which request had little or
     nothing to do with the purpose of our FOI law, that is to keep
     our electors advised of the performance of their public
     officials and to make it possible for them, or their
     representatives, to learn and to report fully the activities
     of their public officials, but instead the request was
     triggered largely by appellant's intent to save a few dollars
     in serving process on the officers, not to learn about or
     report on those officers' activities, the supreme court upheld
     the circuit court's decision denying appellant's FOI request
     for the home addresses of the officers.


     Appeal from Sebastian Circuit Court; Don R. Langston, Judge;
affirmed.
     Appellant, pro se.
     Dailey & Woods, P.L.L.C., by:  Wyman R. Wade, Jr., for
appellees.
     Tom Glaze, Justice.
     On behalf of two clients, appellant Oscar Stilley, an
attorney, filed a  1983 action in federal court against two Fort
Smith police officers, Patricia Sullivan and Ronald Pippin. 
Stilley sought to obtain the officers' home addresses from their
personnel records from Wanda McBride, a City of Fort Smith
employee.  Stilley wanted the addresses, so he could serve the
officers by mail, which was cheaper than having them served in
person.  When McBride refused Stilley's request, Stilley
immediately reduced his request to writing, demanding the addresses
pursuant to the Arkansas Freedom of Information (FOI) Act, Ark.
Code Ann.  25-19-101 -107 (Repl. 1996).  On the same day, the Fort
Smith City Attorney, Stanley A. Leasure, by letter, denied
Stilley's demand, and stated the records requested were exempt from
disclosure under  25-19-105(b)(10) of the FOI Act.  That provision
generally provides that personnel records are not open to the
public if their disclosure would constitute a "clearly unwarranted
invasion of personal privacy."  Six days later, Stilley, pro se,
filed this lawsuit in circuit court, seeking Sullivan's and
Pippin's home addresses.  Fort Smith answered, again denying
Stilley's requests, and stating the information sought is exempt
under  25-19-105(b)(10).  The circuit court promptly set the
matter for a hearing.    
     At the hearing, counsel revealed that not only had Stilley
already obtained the officers' addresses, but also both the City
and the officers had filed their answers in the federal lawsuit. 
In fact, the federal suit had been dismissed prior to the circuit
court's hearing.  Nonetheless, the parties and the circuit court
proceeded with stipulations of facts, testimony, and arguments,
after which the circuit court held that the officers' home
addresses were exempt from disclosure under  25-19-105(b)(10)
because the information is a clearly unwarranted invasion of
personal privacy.  Stilley appeals, claiming the trial court erred.
     We first are met with the doctrine of mootness, and the well-
settled rule that this court does not render advisory opinions, nor
answer academic questions.  Wilson v. Pulaski Ass'n of Classroom
Teachers, 330 Ark. 298, ____ S.W.2d ____ (October 23, 1997).  Under
Arkansas law, a case becomes moot when any judgment rendered would
have no practical effect on an existing legal controversy.  Id. 
However, when the case involves the public interest, or tends to
become moot before litigation can run its course, or a decision
might avert future litigation, we have, with some regularity,
refused to permit mootness to become the determinant.  Campbell v.
State, 300 Ark. 570, 781 S.W.2d 14 (1989).  The FOI case now before
us unquestionably presents an issue of public interest. 
Accordingly, we address and decide it.
     In Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), this
court considered whether personnel records, containing written
examinations and evaluations of police officers seeking promotions,
were exempt from disclosure under  25-19-105(b)(10).  We sustained
the trial court's ruling that the public's right of scrutiny would
be satisfied under the circumstances, if the evaluation or assessor
report forms were released after the names of the officers were
deleted.  In affirming the trial court, we stated the following:
          The fact that section 25-19-105(b)(10) exempts
     disclosure of personnel records only when a clearly
     unwarranted personal privacy invasion would result,
     indicates that certain "warranted" privacy invasions will
     be tolerated.  Thus, section 25-19-105(b)(10) requires
     that the public's right to knowledge of the records be
     weighed against an individual's right to privacy.  The
     public's interest, the right to know that its safety is
     protected by competent and the best-qualified police
     lieutenants, is substantial.  Because section 25-19-
     105(b)(10) allows warranted invasions of privacy, it
     follows that when the public's interest is substantial,
     it will usually outweigh any individual privacy interests
     and disclosure will be favored. 
     In the Young decision, while recognizing the federal FOI Act
personnel exemption is not identical to Arkansas's, we adopted the
federal court's standard of balancing the public's and individual's
privacy interests when deciding whether personnel information
should be disclosed under  25-19-105(b)(10).  We cited Brown v.
FBI, 658 F.2d 71 (2d Cir. 1981), with approval, stating that the
federal courts have found that a substantial privacy interest
exists in records revealing the intimate details of a person's
life, including any information that might subject the person to
embarrassment, harassment, disgrace, or loss of employment or
friends.  We concluded in Young that the release of embarrassing
behaviors potentially contained in the records regarding officer
promotions touched on the intimate details of the officer-
candidates' lives, and was, therefore, a substantial personal
privacy interest and would result in a clearly unwarranted invasion
of the officers' personal privacy.
     Since our decision in Young, the Supreme Court has decided the
case of Department of Defense v. FLRA, 510 U.S. 487 (1994), which
is worthy of our review before deciding the question now before us. 
There, the Court held the disclosure of the home addresses of
federal civil service employees constituted a "clearly unwarranted
invasion of the employees personal privacy" within the meaning of
the federal FOI Act, 5 U.S.C.  552(b)(6).  In FLRA, two local
unions requested agencies of the Department of Defense to provide
them with the names and home addresses of the agency employees in
the bargaining units represented by the unions, but the agencies
withheld home addresses, claiming such information was prohibited
by the Privacy Act of 1974.  Eventually, a divided panel of the
United States Court of Appeals for the Fifth Circuit rejected the
agencies' claim and held that, because exemption  552(b)(6) of the
federal FOI Act did not apply, the FOI law mandated full
disclosure.  975 F.2d 1105 (1992).  The Fifth Circuit majority
panel reasoned that because the weighty interest in public-sector
collective bargaining identified by Congress in the Labor Statute
would be advanced by the release of the home addresses, disclosure
"would not constitute a clearly unwarranted invasion of privacy." 
The Fifth Circuit adopted the unions' argument that the home
addresses of bargaining-unit employees constitute information that
was "necessary" to the collective-bargaining process because
through them, unions could communicate with employees more
effectively than would otherwise be possible.
     Upon its certiorari review of the Fifth Circuit Court
decision, the Supreme Court reversed, and in doing so, noted that
its duty on review was to weigh the privacy interest of bargaining-
unit employees in nondisclosure of their addresses against the only
relevant public interest in the FOI balancing analysis -- the
extent to which disclosure of the information sought would "shed
light on an agency's performance of its statutory duties" or
otherwise let citizens know "what their government is up to." 
FLRA, 510 U.S.  at 497.  The Court determined that, while the
disclosure of the addresses might allow the unions to communicate
more effectively with employees, such disclosures would reveal
little or nothing about the employing agencies or their activities. 
Id.
     After finding the relevant public interest supporting
disclosure of home addresses to be negligible, at best, the Court
then proceeded to weigh the interest of bargaining-unit employees
in nondisclosure of their home addresses.  It commenced this stage
of its balancing of competing interests, by stating that, because
there is little relevant public interest shown for releasing
employees' home addresses, it is sufficient under the circumstances
to observe that the employees' privacy interest in nondisclosure is
not insubstantial.  Id. at 500.  The Court first pointed out that
whether such personal information may be available from other
sources such as telephone directories and voter registration lists
is not relevant for balancing purposes.  Id.
     The Court generally discussed the employees' various reasons
for choosing not to provide the unions with their addresses, such
as the employees' lack of familiarity with unions, their opposition
to unions, or their reluctance to be disturbed at home by work-
related matters.  The Court expressed its reluctance to disparage
the privacy of home, which is accorded special consideration in our
Constitution, laws, and traditions.  In addition, the Court said
that, when it considered that other parties, such as commercial
advertisers and solicitors, must have the same access under the FOI
Act as the unions to the employee address lists sought, it is clear
that the individual privacy interest that would be protected by
nondisclosure was far from insignificant.   FLRH, 510 U.S.  at 501.
     In turning to the situation at hand, we initially emphasize
that, under Arkansas's FOI Act, records kept in the scope of public
employment are presumed to be public records, see  25-19-103(1),
but even so, such a record may be exempt from disclosure as is
provided under  25-19-105(b)(10).  However, any exemption from
disclosure is to be narrowly construed.  Young, 308 Ark. at 596,
826 S.W.2d  at 254.  Thus, like the City of Little Rock did in
Young, the City of Fort Smith here had the burden to show that the
officers' privacy interests outweighed that of the public's under
the circumstances presented.  Id. 
     The City of Fort Smith undertook and met its burden at the
circuit court hearing by presenting the testimony of Police
Sergeant Patrick Young.  Sergeant Young testified, touching on two
concerns relating to the disclosure of police officers' addresses
to the public.  His first concern was that, when an officer goes
home, the officer expects to be safe, and when he or she is on
duty, the officer does not need the added burden of worrying about
his family at home.  A second concern, given by Sergeant Young, was
the potential harassment or nuisance of people visiting or
contacting officers at home.
     As previously mentioned, Stilley's sole reason for requesting
Officers Sullivan's and Pippin's addresses was to utilize a cheaper
method of obtaining service of process on the officers.  Similar to
the federal FOI Act, the purpose of our FOI law is to keep our
electors advised of the performance of their public officials and
to make it possible for them, or their representatives, to learn
and to report fully the activities of their public officials.  Ark.
Code Ann.  25-19-102 (1996).  The reason given by Stilley for
requesting home addresses of police officers -- has little or
nothing to do with learning or reporting the officers' activities. 
This is especially true here, since Stilley's federal lawsuit had
been filed before he requested the officers' addresses, and the
suit had been dismissed before any hearing had been held by the
circuit court.  Stilley's request, in short, was triggered largely
by his intent to save a few dollars in serving process on Sullivan
and Pippin, not to learn about or report on those officers'
activities.    
     For the foregoing reasons, we uphold the circuit court's
decision, denying Stilley's FOI request for the home addresses of
officers Sullivan and Pippin.