Elizabeth Caldwell, FOIArkansas Project

Telephones began ringing in regional supervisors’ offices shortly after county units of the state Health Department opened at 8 a.m. Aug. 23.

FOIArkansas----------------Unlocking the public's business

People were walking into the offices asking for recent restaurant inspection reports, “whichever one you did last.” State sanitarians, who do restaurant inspections, wanted to know why.

All they could do that day was guess, but they learned later the requests were part of a statewide survey to test compliance with the Arkansas Freedom of Information Act. The law allows citizens access to most government records, including restaurant inspection reports.

Of four government offices surveyed in each county, Health Department offices were the least compliant.

Dr. Fay Boozman, director of Health, said in a September interview that he was disappointed in his department's performance as it related to compliance with FOI requests, and he would take immediate steps to ensure better compliance in the future.

People fielding the request found it a bit unusual; most requests for restaurant inspection reports are for specific restaurants, and usually come from those in the business or a customer.

“It just threw me,” said Mildred McNamee, nurse administrator of the Hot Spring County health unit in Malvern. “I had never, ever had that happen before.”

By that afternoon, some health department officials had guessed correctly what had happened.

“My best guess is that we were tested this morning by some group outside the agency to see how we respond to FOI-type requests,” Jim House of Fayetteville, a regional supervisor over several county health units, wrote in a department e-mail.

By mid-afternoon, the test was nearly complete statewide and the department had granted access to the requested report 38 times. In 21 of the 37 counties where access to the records was denied, the custodian of the record was unavailable.

The FOIArkansas Project sent 75 people to the state’s 75 counties, all on the same day, to survey the health units, the county jail, a school district and a city. The compliance rate at health units was 51 percent in initial contacts.

Municipal offices complied with 87 percent of first requests; school districts with 72 percent; and jails with 61 percent.

The Arkansas Freedom of Information Act states, “except as otherwise specifically provided by this section 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.”

Dr. Fay Boozman, director of the state health department, agrees the information was “clearly available under current law.”

In an interview in September, Boozman said he was very disappointed in the department’s performance and would take immediate steps to improve future compliance.

Even though he hated it was his agency that was the least compliant, Boozman said he was glad the survey had been done.

“Everybody in state government is going to be going through this,” he said.

“When they read about what happened with us, this is going to cause a rethinking of this policy in all state agencies. So, as much as I wish it wasn’t our agency, I feel like this was a good exercise and one that we’re all going to learn from,” he said.

The day of the survey, the department’s central office in Little Rock sprang into action.

When one surveyor walked into the Miller County health unit in Texarkana at 8:40 a.m., Sanitarian Kelly Rowland immediately asked her to name a specific restaurant and put the request in writing.

When asked why, Rowland said county offices had been getting similar requests around the state and the central office had decided “that was the policy.”

Boozman later said there were misunderstandings by some of the department employees. He said Sandra Lancaster, program administrator for food protection services, told the sanitarians that the request must name a specific restaurant.

“Her reply was, ‘You need something specific.’ She doesn’t recall at all talking about having to get it in writing. We don’t know how that happened,” Boozman said.

He acknowledged that the FOI does not require requests be in writing. He said officials later determined that asking for “whichever one you did last” was sufficiently specific.

Boozman, an eye surgeon and former state senator from Rogers who was appointed to head the department Feb. 1, said the department already had an adequate FOI policy instructing employees about the law.

“This just points to the necessity of training,” he said.

He since has ordered that all employees receive training in the law.

“Right now, I can understand it just hasn’t been emphasized, and that’s my fault; that’s not the fault of our staff out there,” Boozman said.

“What this really points up is, the FOI is interpreted as being an intrusion. Clearly the stumbling blocks we’ve put to you all getting this information shows that we don’t understand what the heart of FOI is. It’s basic to people controlling their government, people knowing what their government’s doing,” he said.

Paul Cree of Morrilton, sanitarian for Conway and Perry counties, was one of several sanitarians hesitant to release a filled-out report, offering surveyors in those counties a blank form instead.

“It’s more or less a matter between the health department and the establishment,” Cree said in a later interview about his reluctance. “Sometimes if I write somebody up pretty hard and it’s made public, it could hurt their business,” he said.

Cree, one of at least eight sanitarians responsible for more than one county, was in his Morrilton office in Conway County the day the surveyor in Perry County reached him by telephone.

He said that he hesitated because “she didn’t really tell me why she wanted it.”

The FOI law does not require a person to say why he wants the record.

Cree had turned away a surveyor in Conway County a half-hour earlier. Though that surveyor noted Cree was cooperative and volunteered the information was public record, Cree refused him access with the excuse that “this is a bad time.”

Tom Jenkins of Beebe, a sanitarian and administrator of the White County unit in Searcy, was heard by the surveyor to ask a supervisor on the telephone, “Am I obligated to show it to him?”

Jenkins said later he’s not sure what made him leery.

“Most of our trouble is we don’t deal with Freedom of Information Act stuff to sort out what is or isn’t to be released,” he said. “I imagine about 90 percent of us overreact.”

A surveyor who talked with Mauriece Lowe, a Crittenden County sanitarian for five years, said Lowe immediately asked the surveyor who he worked for and demanded to know if he was a newspaper reporter.

Lowe then required the surveyor to fill out a written request and submit his driver’s license, making a copy of it.

In recalling the encounter, Lowe at first denied he asked for the surveyor’s license. Then Lowe acknowledged he did ask, saying he “had to check who he was” so he could tell the unit administrator what was going on.

Despite a poor showing overall, some health units won the praise of surveyors.

Independence County Sanitarian Betty Wilroy of Batesville was “very helpful,” the surveyor said, noting he was in and out in five minutes with not one, but the last two restaurant reports.

“The way it’s supposed to work,” the surveyor said.

Marshall Bramlett, Van Buren County sanitarian, “was friendly and willing to help, although he was pretty curious,” the surveyor said. Bramlett volunteered a copy of the record before the surveyor asked.

Some officials at the health units asked surveyors to come back later in the day. On second visits, another six provided access to the inspection reports; 14 sanitarians sent copies of reports by mail within three days of the survey.

Boozman said one possible reason his offices had the worst compliance rate among offices surveyed is that most health units don’t have an employee designated to be keeper of the records.

“It’s whoever’s available,” he said. “There’s nobody that’s there on a daily basis that actually has as part of their job description to know where those records were and what could be released and what couldn’t.”

They are working to remedy that, he said.

Chicot is one of those counties in which the sanitarian was absent when the surveyor arrived. Another employee told the surveyor “you can see one for your restaurant, but nobody else’s.”

When asked why, the employee said “because sometimes there’s some bad stuff in there.”