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David Robinson, FOIArkansas Project

Curiosity got the best of Yell County Judge Jimmy Witt when a letter arrived at the courthouse early Monday morning, Aug. 16.

The letter, opened by the secretary who works for Witt and County Clerk Carolyn Morris, asked the clerk for a copy of the county judge’s “post-election campaign finance report” from the most recent election.

The county clerk is required to keep files on the reports, which show how much money candidates raised, and from whom.

Witt had no way of knowing it, but similar scenarios were being played out in 74 other counties that day as letters began arriving as part of a statewide citizen survey to determine whether clerks would respond to a Freedom of Information request by mail. The letter gave no indication that the same document was being requested in the other counties.

“We talked about it,” Witt recalled in an interview in September. “I said, ‘I bet you there’s somebody doing a study on this.’ It had my imagination going.”

Witt decided to contact the letter writer, Tamara Robinson of North Little Rock, immediately. At 8:20 a.m., Robinson’s phone rang. Witt was polite, Robinson said; he asked if she was doing some sort of comparative study.

Witt said in the interview later that he also had discussed the request with his father, Federal Emergency Management Agency Director James Lee Witt; the elder Witt said he also suspected the request was part of some kind of study.

Because of the nature of the survey, Robinson could not tell Witt her mission; it would take only one or two phone calls to other clerks or the clerks’ state association to skew the results.

The Witts’ perceptions were on target.

The mail survey to county clerks was part of the FOIArkansas Project, which also included an e-mail survey of state universities and walk-in surveys of the county jail, the county unit of the state Health Department, a city and a school district in each of the state’s 75 counties.

Robinson sent letters to all 75 county clerks, seeking the same document requested in Yell County. The letters included a $2 check to cover copying and mailing costs and were intended to test whether clerks would respond to requests for information by mail, even though the Arkansas Freedom of Information Act may not require mail responses.

When results were tallied, Yell was one of 63 counties that responded in one way or another to the request, but only 35 provided the exact document sought in the letter. Another 23 sent post-primary or pre-primary reports from May 1998 rather than from the November general election; three sent “statements of financial interest” filed by the candidates; and two sent letters or notes seeking clarification.

The 35 counties that sent the exact document and the 23 that sent primary reports, when considered together, give county clerks a 77 percent compliance rate.

“That’s pretty good” said Mark Hinueber, corporate attorney for Stephens Media Group. Hinueber also noted that the state’s Freedom of Information Act does not say whether government agencies must provide public documents by mail.

Thirty-eight of the 63 responses were back to Robinson within three business days. By Aug. 23, six business days later, 70 percent, or 53 counties, had responded.

Of the two respondents who asked for more information, one asked Robinson whether she wanted the Campaign Contribution and Expenditure Report or the Statement of Financial Interest. The other one said no “post financial report” was filed by the judge because the judge ran unopposed and spent no money for his election. The clerk offered to send a Statement of Financial Interest if Robinson wanted that.

A Statement of Financial Interest, also required to be kept in the county clerk’s office, includes candidates’ and public officials’ sources of income, business holdings, creditors, gifts, offices and directorships they may hold.

Many county clerks who did not send final general election reports noted in their responses that they were sending the last report available in their files. In follow-up interviews several said they weren’t aware the judge had to file a general election report if the judge ran unopposed, and thus, spent no money.

Bob Brooks, director of the state Ethics Commission, said even if unopposed, county judges, according to state law, must file a final campaign finance report after the general election.

Other notable responses:

• Crawford and Hempstead counties sent the right document, which arrived back at Robinson’s house within three business days of the mailing. They were the only counties that included notes encouraging Robinson to contact them for additional service, if needed.

Crawford County Clerk Patti Hill said in an interview the request was handled by one of her clerks.

“I’ve got an excellent staff, and I can’t brag on them enough,” she said.

• Though it had not provided a document, the Desha County Clerk’s Office cashed Robinson’s $2 check. County Clerk Brenda Smith Morgan explained later that she typically charges a $3-to-$5 search fee when citizens request public documents.

Search fees are not allowed under the FOI Act, according to a 1987 attorney general’s opinion. Told that, Morgan became upset, saying searches for documents take her clerks away from their other work. She said she would refund the $2 to Robinson and hung up the phone.

“What’s the problem?” she said before hanging up. “Sometimes we charge and sometimes we don’t.”

Robinson received a $2 check from Morgan on Sept. 15.

Morgan’s office did respond quickly to the Aug. 13 request. On Aug. 18, Robinson received a note from a deputy clerk saying the county judge had filed no campaign finance report because he ran unopposed. The note said to call the clerk’s office if Robinson wanted the judge’s Statement of Financial Interest.

• Three counties, Fulton, Madison and Polk, provided campaign finance documents at no charge.

• Conway County sent back 29 pages of documents and a bill for $27 after deducting the $2 already paid. Robinson sent back 25 pages of documents she had not asked for and another check for $2.

• Benton, Clark and Miller counties also sent bills for more than the $2 to provide the information.

Benton County charged 50 cents a page for seven pages, or $3.50; Clark County charged $1 a page for six pages; and Miller County charged $1 a page for five pages.

• Perry County charged 25 cents a page for six pages and returned Robinson’s $2 check with a bill for $1.50.

• Scott County sent a note asking for clarification of the information being requested, but no document had been received as of Sept. 16. Robinson had, on Aug. 28, mailed back a note saying she wanted the Campaign Contributions and Expenditures report. County Clerk Martha Hankins said she sent the report within a day or so of receiving the clarified request.

Doris Tate, Sebastian County Clerk and president of the Arkansas County Clerks Association, said the clerks are not specifically trained about the FOI Act; but if they have questions, they are encouraged to contact the local prosecuting attorney or the attorney general’s office.