ELECTRONICALLY FILED

Pulaski County Circuit Court

Terri Hollingsworth, Circuit/County Clerk
2020-May-05 11:53:40
60CV-20-2847
C06D05 : 9 Pages

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

DIVISION _______

RUSSELL KING, KANDICE HAUSE,

CHRISTOPHER MCCAULEY, and
RUSTY ROTHWELL PLAINTIFFS

vs. Case No. 60CV-20-_____

CITY OF LITTLE ROCK, ARKANSAS; and

CHIEF KEITH HUMPHREY DEFENDANTS

ARKANSAS FREEDOM OF INFORMATION ACT COMPLAINT AND

REQUEST FOR IMMEDIATE HEARING

COMES NOW Plaintiffs Russell King, Kandice Hause, Christopher McCauley, and

Rusty Rothwell, by and through their attorneys Degen Clow and Chris Burks of WH Law, PLLC,

and for their Arkansas Freedom of Information Act Complaint and Request for Immediate

Hearing against Defendants City of Little Rock, Arkansas and Chief Keith Humphrey, do hereby

state and allege as follows:

I.

INTRODUCTION

Chief Keith Humphrey has refused hard-working employees their own personnel files,

punished them without any basis in fact, closed a subsequent investigation into himself, all while
covering-up a hostile work environment he directed the City of Little Rock Human Resources

Department not to investigate. The suit merely seeks to end this cascading illegality and provide

Plaintiffs their own files that all public employees are entitled to by law.

II.

PARTIES

A. Russell King, Kandice Hause, Christopher McCauley, and Rusty Rothwell

1. Russell King, Kandice Hause, Christopher McCauley, and Rusty Rothwell

(“Plaintiffs”) are adult citizens of Arkansas who work for the City of Little Rock in Pulaski

County, Arkansas.

2. Plaintiffs brings this appeal as a matter of right under Arkansas Code Annotated

§ 25-19-107, as they requested their own specific public records from Defendants, and

Defendants actually and constructively denied a portion of the Plaintiffs’ request, entitling the

Plaintiffs to a hearing in this court. Ark. Code Ann. § 25-19-107(a); see Orsini v. State, 340 Ark.

665, 13 S.W.3d 167 (2000).

B. Keith Humphrey in his official and personal capacity as Police Chief

3. Defendant Keith Humphrey is the Police Chief of Little Rock, Arkansas, a

municipality, tasked with providing, upon proper request, access to public records as defined in

Arkansas Code Annotated § 25-19-103(5)(a), subject to any exclusions in Arkansas Code

Annotated § 25-19-105(b) and/or limitations in Arkansas Code Annotated § 25-19-105(c). See

Ark. Code Ann. §§ 25-19-105(d)(1) to -105(d)(2).

C. City of Little Rock, Arkansas

 4. The City of Little Rock, by and through its agents, is tasked with providing, upon

proper request, access to public records as defined in Arkansas Code Annotated § 25-19-

103(5)(a), subject to any exclusions in Arkansas Code Annotated § 25-19-105(b) and/or

limitations in Arkansas Code Annotated § 25-19-105(c). See Ark. Code Ann. §§ 25-19-105(d)(1)

to -105(d)(2).

III.
JURISDICTION AND VENUE

5. This is an appeal from a denial of rights under the Arkansas Freedom of

Information Act, A.C.A. § 25-19-101, et seq.

6. This court has subject-matter jurisdiction pursuant to Arkansas Code Annotated

section 25-19-107(a).

7. Venue lies in Pulaski County because the events leading to this lawsuit occurred

entirely within Pulaski County. See Ark. Code Ann. § 25-19-107(a).

IV.

BACKGROUND FACTS

8. The preceding paragraphs are incorporated herein as if set forth word for word.

9. On November 8, Plaintiff Kandi Hause wrote the Little Rock City Attorney’s

Office regarding her desire to file a lawsuit over the back pay owed her for her highly-praised

work as a victim services coordinator.

10. Throughout the fall, Plaintiff Hause and her chain of command (Russell King,

Christopher McCauley, and Rusty Rothwell) continued to press Defendants to lawfully pay

Hause for all the hours that she was working.

 11. On December 31, 2019, the Chief of Police initiated an Internal Affairs

investigation into Plaintiffs.

12. The resulting Internal Affairs investigation found no issues with Plaintiffs and

recommended no discipline.

13. The Internal Affairs investigation recommending no discipline was passed up

through the appropriate channels in the chain of command and no discipline to Plaintiffs was

recommended by anyone.

14. However, on April 7, 2020, despite the recommendation of the Assistant Chief

of Police that no discipline was warranted, Chief Humphrey overturned the recommendation of

the chain of command and Plaintiffs were disciplined by the Chief for supposed “dereliction of

duty.” See the attached and incorporated Exhibit “A.”

15. This shocking discipline by the Chief of Police was done one day after Plaintiff

Kandice Hause had sent her signed settlement agreement to Defendants of her back-pay lawsuit

on April 6, 2020.

16. Hause’s entire chain of command (Russell King, Christopher McCauley, and

Rusty Rothwell) was disciplined.

17. Per Defendants’ own policy, Plaintiffs had ten (10) days from their discipline on

April 7, 2020 to review their personnel file.

18. This ten (10) day time period is in place so that employees can submit any

documentation to their file to rebut the written discipline that the Chief had placed in their file.

19. However, Defendants refused to give Plaintiffs their personnel files.

 20. Plaintiffs thus could not rebut their discipline in the ten (10) days allowed because

Defendants refused to give them their personnel files.

21. Even after Plaintiffs formally requested their files via a Freedom of Information

Act request through their chain of command, Defendants still refused to give Plaintiffs their

personnel files.

22. So Plaintiffs filed a renewed Freedom of Information Act request with Human

Resources Director Stacey Witherell on Thursday, April 23, 2020, in which they requested their

own personnel files and made her aware of their prior efforts to get their files.

23. This request by Plaintiffs included their own “personnel or evaluation records”

that would otherwise by exempt from disclosure to the general public but by law “shall

nonetheless be made available to the person about whom the records are maintained” per Ark.

Code Ann. § 25-19-107(c)(2).

24. These records were not of “undisclosed investigation by law enforcement

agencies of suspected criminal activity” under Ark. Code Ann. § 25-19-107(b)(6), because as

evidenced by the Chief’s own April 7, 2020, written final action, there was no criminal activity

or criminal investigation. All files into Plaintiffs and the Chief were closed.

25. Even so, on April 23, 2020, Defendants refused to give Plaintiffs their personnel

files, and Defendants also refused to open an investigation into Chief Humphrey for the clearly

retaliatory discipline issued to them on April 7, 2020.

26. On Friday May 1, 2020, Dr. Shella Atlas-Evans, Labor & Employee Relations

Manager for Defendants, stated that she knew that Plaintiffs had requested their files on April
23, 2020 and she knew that Plaintiffs requested that an investigation in Chief Humphrey be

opened.

27. However, Dr. Shella Atlas-Evans stated that “she had bosses…people she

reported to” so she could not open an investigation into Humphrey or give Plaintiffs their files.

28. Defendants’ Human Resources Director Stacey Witherell, in spite of knowing

that Plaintiffs were represented by counsel on this issue, then directly called Plaintiff Rusty

Rothwell and attempted to persuade him to drop his request for files and for him not to proceed

with a complaint against Chief Humphrey.

29. As of the date of this filing, Plaintiffs have still not received their own personnel

files as they requested and are legally entitled to.

30. In addition to not giving Plaintiffs their files to view because they do not want

Plaintiffs to learn details of the retaliatory discipline against them, Defendants also do not want

Plaintiffs to have their files because the Internal Affairs recommendation that is a part of

Plaintiffs’ personnel files indicates that there are questions about Chief Humphrey’s honesty.

31. In other words, Plaintiffs’ personnel files contain evidence that Humphrey closed

an investigation that was expanding into his own conduct and honesty, and Humphrey has since

withheld those files that would show his retaliatory actions and how an investigation into him

should have proceeded.

V.

COUNT I:
 REFUSAL TO PROVIDE PERSONNEL FILES

32. The preceding paragraphs are incorporated herein as if set forth word for word.

33. Arkansas courts liberally construe the Arkansas Freedom of Information Act to

accomplish its broad and laudable purpose that public business be performed in an open and

public manner, and courts broadly construe the FOIA in favor of disclosure. See Fox v. Perroni,

358 Ark. 251, 188 S.W.3d 881 (2004).

34. Plaintiffs merely requested that they be able to view their own personnel records

in private.

35. Ark. Code Ann. § 25-19-107(c)(2) clearly requires that Plaintiffs’ own “personnel

or evaluation records,” even those that would otherwise by exempt from disclosure to the

general public, “ be made available to the person about whom the records are maintained.”

36. Defendants have refused to make these records “available” to Plaintiffs in

private.

37. To the extent Defendants attempt to cite a supposed ongoing “investigation…of

suspected criminal activity” under Ark. Code Ann. § 25-19-107(b)(6) as a reason for the refusal

to turn over Plaintiffs’ own personnel records to them, there clearly is not an investigation as

evidenced by the Chief’s own April 7, 2020, written final action, there was no criminal activity

or criminal investigation. All files into Plaintiffs and the Chief were closed.

38. Further, any attempts by Defendant to cure their illegal withholding of personnel

records by making them available now, does not obviate Defendant of their obligation to have

done so within the three days required by law, nor does it allow Plaintiffs the time to rebut the

any findings that should have been provided.

 39. Simply put, there is no provision of the Freedom of Information Act that allows a

custodian of records to pick and choose how to partially comply with a legal request. See generally

Daugherty v. Jacksonville Police Department, 2012 Ark. 264 (holding that the FOIA “does not give

the custodian of records the power to pick and choose which requests it may comply with,” nor

may a custodian disclose only the records that he deems relevant).

40. Defendant’s breach is both the legal and proximate cause of Plaintiffs’ inability to

obtain public records to which he was legally entitled under Arkansas Code Annotated § 25-19-

105.

VI.

RELIEF SOUGHT

WHEREFORE, based on the foregoing, Plaintiffs pray that this Court will:

A) Find that Defendants, either in bad faith or negligently failed to comply with the FOIA

with respect to Plaintiffs’ April 23, 2020, request.

B) Order that Defendant fulfill Plaintiff’s request as required by state law.

C) Issue a modified summons that fixes and assesses a day the petition is to be heard within

seven (7) days of the date of this application, and hear and determine the case as required

by Arkansas Code Annotated § 25-19-107(b).

D) grant Plaintiffs fees and costs in pursuing this matter; and

E) grant all other just and proper relief, whether prayed for specifically herein or not.

Respectfully submitted,

RUSSELL KING, KANDICE HAUSE,

CHRISTOPHER MCCAULEY, and
 RUSTY ROTHWELL,
PLAINTIFFS

WH LAW, PLLC
1 Riverfront Pl. – Suite 745
North Little Rock, AR 72114
(501) 891–6000

By: /s/ Chris W. Burks

Chris W. Burks (ABN: 2010207)
chris@whlawoffices.com
Degen D. Clow (ABN: 2014038)
degen@wh.law
 ELECTRONICALLY FILED
Pulaski County Circuit Court
Terri Hollingsworth, Circuit/County Clerk
2020-May-05 11:53:40
60CV-20-2847
C06D05 : 2 Pages

UNIFORM COVER PAGE

[To be used when required by Administrative Order No. 2 (g)*]

COURT: CIRCUIT COURT OF PULASKI COUNTY

Docket/Case Number: 60CV-20-_________

CASE NAME:
PLAINTIFF/
PETITIONER: RUSSELL KING et al.

DEFENDANT/
RESPONDENT: CITY OF LITTLE ROCK, ARKANSAS, et al

TITLE OF PLEADING OR
DOCUMENT BEING FILED
(If a multi-part file,
the designation “part _ of _”
(example, part 1 of 2)): Exhibit “A.”

*Administrative Order No 2.
(g) File Mark. (1) There shall be a two inch (2ʺ) top margin on the first page of each document submitted for
filing to accommodate the court’s file mark. If the pleading or document must be filed in multi-parts because of size or
for other reasons, the first page of each part must include the file name and file mark and shall clearly indicate the part
number and number of parts (example, part 1 of 2).
(2) If a document is such that the first page cannot be drafted to provide sufficient space to satisfy the file-
mark requirement, the document must include the uniform cover page developed by the Administrative Office of the
Courts and found under Forms and Publications at www.arcourts.gov.