Examining Judge Lincoln’s ‘Transparency’ Record

Mike Lincoln, currently serving as White County Judge, stated in his recent debate appearance that he always fully complied with Arkansas’ FOI law and that our county government was a “beautiful system” with “so much accountability” and lots of transparency. We beg to differ.

As questions were swirling around the behavior of a county employee, Tamara Jenkins, The Patriot decided to do a little research into the matter ourselves. We availed ourselves of the public’s greatest tool, the Freedom of Information Act, to request electronic copies of all of Ms. Jenkins emails from January 2009 through November 2011. What followed was extremely disappointing.

Before we go into the details of what transpired, let’s examine our rights under the FOIA. Arkansas 25-19-105 says the following:

  • “A citizen may make a request to the custodian to inspect, copy, or receive copies of public records.”
  • “The request may be made in person, by telephone, by mail, by facsimile transmission, by electronic mail, or by other electronic means provided by the custodian.”
  • “If the person to whom the request is directed is not the custodian of the records, the person shall so notify the requester and identify the custodian, if known to or readily ascertainable by the person.”
  • “A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.”
  • “Except as provided in § 25-19-109 or by law, any fee for copies shall not exceed the actual costs of reproduction, including the costs of the medium of reproduction, supplies, equipment, and maintenance, but not including existing agency personnel time associated with searching for, retrieving, reviewing, or copying the records.”

We point all of these out because we sent our requests via email (as specifically allowed under the second bullet above) and we requested electronic copies of emails (as permitted by the fourth bullet point above) and they are only allowed to charge for “actual costs of reproduction”, not personnel time (under the fifth bullet point).

We sent a request to the judge’s office on November 17th, 2011 asking for “electronic copies” of all “Email correspondence between the White County Judge & Tamara Jenkins from January 2009 through November 17, 2011.” And we were told “There is no e-mail correspondence to or from Tamara Jenkins on Judge Lincoln’s computer.” We responded “So you’re saying there has been no email correspondence between the judge and miss Jenkins in the last 2 years?” The Judge’s office replied that they had amazingly suddenly found 43 emails that Ms. Jenkins had forwarded to the judge, but that there was still no correspondence between the two and that we should stop by their office and pay for the physical copies they would provide us. We then decided to take a different approach since the judge’s office seemed intent on ignoring state law.

We sent a request to Ms. Jenkins herself on November 21, 2011 asking for “All emails sent from your county email address from January 2009 to November 21, 2011.” She replied that “All FOI’s for this office must go through the White County Judge’s Office.” And we were back to the judge’s office.

At this point, we cited the specific, pertinent portions of the actual law (and the portions listed above) to the county, and they had an attorney from Little Rock contact us. After we told the attorney our specific request and informed him that we knew our rights under state law, we were informed that they were gathering the emails but would be redacting “sensitive” information as allowed by law (information like SSN, DOB, etc.). Even with this, the records are supposed to be ready in no more than 3 business days.

The records were finally “ready” on November 28th. “Ready” meant that they had printed several off so they could black out sensitive information with markers instead of following the common sense approach of providing electronic files where an actual SSN is replaced with ***-**-**** and they told us that we would have to pay for these physical copies. We declined and asked for them in the same electronic format we had requested since our initial request, and they finally consented. After weeks of wrangling, we finally had received the emails from Ms. Jenkins, or so we thought.

We began sifting through the hundreds of emails that had been provided, and we soon found some very disturbing things. First of all, we noticed that there was an amazingly sparse amount of email (particularly sent items) for a time period beginning May 16th, 2010. Over the next nine months, Ms. Jenkins records that were turned over per our FOI request indicate she had sent a grand total of five emails and that during the months of June, August, September, December, and January she had not sent any emails. For the nine months that followed that, she allegedly only sent four emails. During the same time periods, she allegedly only received six and four emails respectively. Considering that every other month she provided emails for before that averaged several dozen emails sent per month, this raised our level of curiosity considerably. How can you prove the existence of something that someone claims doesn’t exist? Well, there are a couple of ways.

First of all, the 43 emails that we had previously been told were sent from Ms. Jenkins to the county judge weren’t there. Secondly, we decided to see if we could find another copy of the emails elsewhere. With email, it is a little easier. There are always two parties involved, so we decided to contact some of her frequent correspondents (senders/recipients of her other emails) who are also employed with various government agencies. The judge’s office was ruled out as they had already blatantly ignored the FOIA to avoid providing us with access to public records. An examination of the emails we did receive revealed several other individuals who were employed at state agencies, so we contacted them with FOI requests. These folks should be applauded because they actually complied with the FOIA, perhaps because they had nothing to hide in their emails. We found some interesting things.

The individuals at the Arkansas Department of Emergency Management turned over dozens of emails from Tamara Jenkins that occurred during the time period in question and were sent by Ms. Jenkins to individuals working at the department. The emails in question address mundane things, and they are sent from the same address from which Ms. Jenkins other emails (ostensibly all covered by FOI) are sent. Furthermore, there are many emails that these individuals sent to Ms. Jenkins which were also not included in the response to our FOI request. All of this begs the question:

What happened to Ms. Jenkins’ email? Why is it that dozens of sent and received items mysteriously disappeared and were not passed on to us in response to our FOI request?

If some cataclysmic event had occurred, you would hardly expect to find two messages from February, one message from November, two messages from October etc. left standing amid the wreckage. Why is it that the emails appear to have been systematically purged or withheld dating back to May 2010, which is the time period when much questionable behavior was occurring within Ms. Jenkins’ office?

Is it possible to have any confidence in the transparency of our county government when they refuse to comply with the FOI law for days and weeks before finally turning over incomplete records that have the appearance of an intentional cover-up? According to everyone involved, all these FOI requests were funneled through the county judge’s office, per instructions from the county judge’s office.

The citizens of White County need to ask why their judge is restricting access to public records and they need to demand a judge who believes that the government belongs to the people and should be accountable to the people it represents.

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3 comments

  1. Simplemente Conservador

    Don’t forget these provisions of the Arkansas FOIA:
    25-19-104. Penalty. Any person who negligently violates any of the provisions of this chapter shall be guilty of a Class C misdemeanor.

    25-19-107. Appeal from denial of rights — Attorney’s fees.

    (a) Any citizen denied the rights granted to him or her by this chapter may appeal immediately from the denial to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party, if the State of Arkansas or a department, agency, or institution of the state is involved, or to any of the circuit courts of the appropriate judicial districts when an agency of a county, municipality, township, or school district, or a private organization supported by or expending public funds, is involved.

    (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.

    (c) Those who refuse to comply with the orders of the court shall be found guilty of contempt of court.

    (d) (1) In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified .

    (2) If the defendant has substantially prevailed in the action, the court may assess expenses against the plaintiff only upon a finding that the action was initiated primarily for frivolous or dilatory purposes.

    (e) (1) Notwithstanding subsection (d)(1) of this section, the court shall not assess reasonable attorney’s fees or other litigation expenses reasonably incurred by a plaintiff against the State of Arkansas or a department, agency, or institution of the state.

    (2) (A) A plaintiff who substantially prevailed in an action under this section against the State of Arkansas or a department, agency, or institution of the state may file a claim with the Arkansas State Claims Commission to recover reasonable attorney’s fees and other litigation expenses reasonably incurred.

    (B) A claim for reasonable attorney’s fees and litigation expenses reasonably incurred in an action against the State of Arkansas or a department, agency, or institution of the state shall be filed with the commission pursuant to § 19-10-201 et seq. within sixty (60) days of the final disposition of the appeal under subsection (a) of this section.

  2. Terry

    One could compare Judge Lincoln to a cat with diarrhea! He is busy trying to cover up all his mess!
    The Judge is not above the law! He should be required to follow the letter of the law or he should get out of the office of County Judge!
    White County needs a NEW County Judge!!
    Please vote for Bill!! Send Lincoln home!

  3. Pingback: Week In Review: Examining Judge Lincoln’s ‘Transparency,’ Why A Community Leader Can’t Support Judge Lincoln, & New White County Ads «

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