IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION ROBERT STEINBUCH PLAINTIFF Vv. Case No. 60CV-15-5690 UNIVERSITY OF ARKANSAS—LITTLE ROCK; DEFENDANTS MICHAEL SCHWARTZ, IN HIS OFFICIALCAPACITY; ‘THERESA BEINER, IN HER OFFICIAL CAPACITY AMENDED COMPLAINT 1 ‘This case is an appeal from denial of rights guaranteed under the Arkansas Freedom of Information Act (AFOIA), brought pursuant to Ark. Code Ann. § 25- 19-107(a), and a claim of violation of the Arkansas Whistle Blower Act (WBA), Ark. Code Ann. § 21-1-601, et seq. Parties, Jurisdiction, and Venue Plaintiff Robert Steinbuch isa resident of the State of Arkansas, and he brings this action in his capacity as a person entitled to request and receive certain public records under the AFOIA, Ark, Code Ann. § 25-19-101, et seq., and as a public employee who is protected against adverse action under the WBA. Defendant University of Arkansas—Little Rock (UALR) is a “department, agency, or institution of the” State of Arkansas that “is wholly or partially supported by public funds,” making UALR subject to the AFOIA’s requirements of providing access to certain public records upon request. Steinbuch - Amended Complaint Page 1of13|. Defendant UALR is also a “public employer” within the meaning of the WBA, and is prohibited from “tak[ing] an adverse action against a public employee because the employee participates or gives information in...a court proceeding.” . Defendant Michael Schwartz is the Dean ofthe UALR William H. Bowen School of Law (Bowen), and he is sued in his official capacity, as he has administrative control over certain records that form the basis of this lawsuit, making him a “custodian” of those records within the meaning of Ark. Code Ann, § 25-19- 103(1)(A). See Fox ». Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). . Defendant Theresa Beiner is the Associate Dean of Academic Affairs of Bowen, and she is sued in her official capacity, as she engaged in adverse actions against Plaintiffin retaliation for his filing the original Complaint in this matter. . Jurisdiction and venue are proper in this Court as to the AFOIA claim, as UALR is “a department, agency, or institution of the” State of Arkansas. See Ark. Code ‘Ann, § 25-19-107(a) (mandating that all suits against an institution of the state are to be brought in Pulaski County, Arkansas). . Jurisdiction and venue are proper in this Court as to the WBA claim, as the claim is brought within 180 days of the adverse action and UALR is “an agency, department, or institution of state government.” See Ark. Code Ann. §§ 21-1- 604(a) through-604(b). Relevant Legal & Statutory Framework |. For nearly fifty years, it has been a well-settled truth that he AFOIA was “passed wholly in the public interest and is to be interpreted liberally.” Laman v. McCord, Steinbuch - Amended Complaint Page 2 0f1310. a. 2. 1B. 14. 245 Ark. 401, 405, 432 S.W.2d 753, 755 (1968). ‘That liberal interpretation means that, “whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection...then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs.” Ragland v. Yeargan, 288 Ark. 81,85, 702 S.W.2d 23, 25 (1986). Furthermore, even the express AFOIA exemptions found in Ark. Code Ann. § 25- 19-105 are to be narrowly construed. See Hengel ». City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991); see also Young v. Rice, 308 Ark. 593, 826S.W.2d 252 (1992) (holding that AFOIA exemptions are to be narrowly construed “in a manner that favors disclosure”). Because there is a presumption in favor of disclosure, an entity or custodian claiming an exemption under the AFOIA must carry the burden of establishing that the exemption applies and justifying the nondisclosure of information. See, e.g., Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000). In the context of education-related records, the AFOIA shields from disclosure all public records that are “education records as defined in the Family Education Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, unless their disclosure is consistent with the provisions of that act.” Ark. Code Ann. § 25-19- 105(b)(2). In construing and defining the scope of the FERPA exemption, the leading treatise on the AFOIA states: FERPA is limited to records that expressly or effectively identify students personally. Applying [FERPA] in this manner, the Wisconsin Supreme Steinbuch - Amended Complaint Page 3 of 1315. 16. 7. Court held that a state university must comply with a researcher’s FOI request for student applications revealing such information as past grade point averages, class rankings, admission test scores, race, gender, and socio-economic background, but with any personally identifying information redacted. Because this information would not “make a student’s identity easily traceable,” the court said, its disclosure would not violate FERPA. This approach is consistent with the Arkansas FOIA’s requirement that records containing both exempt and non-exempt information be disclosed with the [former] deleted. J. Watkins & R. Peltz, The Arkansas Freedom of Information Act (m & m Press, sth ed. 2009), at 120 (Watkins, at __) (citing Osborn v. Board of Regents, 647 N.W.2d 158 (Wis. 2002)). Under FERPA, as is relevant to the AFOIA, the two broadest sub-categories of the term “personally identifiable information” are: (1) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (2) Information requested by a person who the educational agency reasonably believes knows the identity of the student to whom the record relates. ‘See Ark. Op. Att’y Gen. No. 2012-083 (citing 34 C.F.R. § 99.3). Moreover, “[tJhe FOIA relates to FERPA is such a way that, if the release of an education record is consistent with FERPA, then the FOIA—more specifically, A.CAA. § 25-19-105(b)(2)—does not shield the record from disclosure.” Ark. Op. Att’y Gen. 2013-027. Similarly, as the Attorney General explained in the context of FERPA and the AFOIA, “a requester’s identity—and, a fortiori, his or her unique expertise or Steinbuch - Amended Complaint Page 4 of 1318. 19. 20. ai. 22. 23. knowledge—is generally irrelevant to assessing the custodian’s disclosure obligations.” Id. In 2015, the Arkansas legislature amended the Public Employee’s Political Freedom Act of 1999 to make retaliation against a public employee who exercised his rights under the AFOIA. See Ark. Code Ann. § 21-1-503. ‘The Arkansas Whistle-Blower Act was enacted in 1999 A whistle-blower who is retaliated against by a public employer may seek actual damages and injunetive relief See Cranford County. v. Jones, 365 Ark. 585, 595, 232 S.W.3d 433, 441 (2006). In order prevail on a claim under the WBA, a plaintiff must establish, by a preponderance of the evidence, that he suffered an adverse action because he engaged or intended to engage in an activity protected under the Act. See id. (citing Ark. Code Ann. § 21-1-604(c) (Repl. 1999)). One of the “protected activities” under the WBA is where a public employee “participates or gives information in [a] court proceeding,” Ark. Code Ann. § 21- 1-603(c). Relevant Facts In 2012, Plaintiff submitted an AFOIA request to UALR for an existing Excel document that containedthe LSAT scores, undergraduate GPA, law-school GPA, race, gender, and age data for all students who, over a seven-year period, graduated from Bowen and took the bar exam. Steinbuch - Amended Complaint Page Sof 1324, Initially, Plaintif?"s 2012 request was denied in part; however, upon request from a state legislator, the Arkansas Attorney General issued opinion number 2012-083, in which it was opined that all of the information sought was subject to release once the records were ‘de-identified” within the meaning of FERPA. 25. Subsequently, Plaintiff was able to obtain the requested information from UALR from former Bowen Dean Paula Casey. 26. Plaintiff was also able to obtain this information in response to a similar request in November 2013 from Defendant Schwartz. See Exhibit A. 27.On October 12, 2015, consistent with earlier requests for similar records, Plaintiff requested identity-redacted public records from Bowen which contained student data that had been used to create a presentation that was prepared for the September 2015 Bowen Faculty Meeting, as well as any spreadsheets Bowen had developed using that same data. 28. Plaintiff's October 12 request for records was sent to Mr. Erik Malmberg and Ms. Judy Williams, with the latter being copied on the request “because [she] had previously indicated that [Plaintiff] should do so when requesting public records.” Plaintiff's request continued, “Of course, I only want identity-redacted records consistent with the FOIA. See AG Opinion 2012-083.” 29. Despite Plaintiff's clear language indicating that his request was made pursuant to the AFOIA, as well as his reference to an Attorney General Opinion that dealt specifically with AFOIA requests, on October 13, Defendant Schwartz responded to the October 12 request with confusion, writing: Steinbuch - Amended Complaint Page 6 of 13I cannot tell if you are making an FOI request or not, and Judy Williams is also uncertain. Because of the time deadlines that attach to FOI requests, we want to be sure. 30. Plaintiff responded on October 13, confirming the obvious fact that the records were being requested under the AFOIA. 31. On October 15, Ms. Williams emailed Plaintiff with records purporting to be in fulfillment of his October 12 request. See Exhibit B. 32. Plaintiff responded to Ms. Williams's October 15 email to note some problems with the records as produced. 33. Specifically, Plaintiff wrote to Ms. Williams I see that “Ethnicity,” “LSAT,” and “LGPA” are redacted from the spreadsheet. I'm not sure whether this was an oversight. Iam aware that the University had once taken the position that this was exempt information, but that position was rejected by the Attorney General in AG Opinion 2012-083. And the University had understood this when it thereafter, on repeated occasions, provided me with that information. Accordingly, please provide me with the spreadsheet including “Ethnicity,” “LSAT,” and “LGPA.” Finally, it appears that the document is an image of an Excel spreadsheet. I request the document in the electronic format in which it seemingly exists (or to which it can readily be converted), ie, Excel. 34. The “Ethnicity” column of the requested record breaks students into the following groups: Black, White, Hispanic, American Indian, Asian or Pacific Islander, and Unknown. 35. The LSAT column contains students’ LSAT scores, which is an integer between 120 and 180 and which, in the case of Bowen, generally range between about 144 and 168 according to previously obtained records. Steinbuch - Amended Complaint Page 7of1336. The LGPA is a student’s undergraduate GPA, which is presented on a four-point scale, carried out to two decimal places, and generally falls between 2.00 and 4.00. 37. On October 19, Defendant Schwartz responded to Plaintiff’s October 15 email, writing (emphases added): Because you served on the law school’s admissions committee throughout the time period when all of the students in this spreadsheet applied to the law school, it is reasonable to assume your knowledge of the applicants, particularly applicants whose credentials are distinctive in terms of being higher or lower relative to their peers. Likewise, itis likely there are combinations of undergraduate GPA and LSAT score that would be memorably distinctive. ‘Those issues would be exacerbated by ethnicity data, particularly because the law school admits so few students of color. It is therefore reasonably likely that, if we were to provide the redacted information, you would be able to infer identity and therefore the data is data that could reasonably be expected to lead to personally identifiable information. For similar reasons, as a professor at a small law school like Bowen that has only a very small number of students of color, the ethnicity data needed to be redacted in any event because providing even the ethnicity data alone would reasonably be expected to lead to personally identifiable information. 38. Plaintiff responded to Defendant Schwartz’s email, explaining that Schwartz's reasoning was flawed, citing Ark. Op. Att'y Gen, No. 2012-083 and the Wisconsin Supreme Court case cited therein, referencing Professor Watkins” treatise on the AFOIA, and refuting Schwartz’ assertions generally. 39. Rather than taking this opportunity to correct his obvious error, Defendant Schwartz persisted in his flawed position, writing in response to Plaintiff’s October 19 email, “With regard to the other issues raised in your email, we stand by our previous response, but are continuing to evaluate your request and reserve the right to supplement our response.” 40. Plaintiff filed his original Complaint this matter on November 17, 2015. Steinbuch - Amended Complaint Page 8 of 1341. On or about November 19, 2015, Plaintiff learned that Defendant Beiner had contacted a minority student from one the courses that Plaintiff teaches, asking the student whether Plaintiff had discussed his race-related research with the class. 42.On information and belief, Plaintiff asserts that Defendant Beiner contacted multiple minority students from PlaintifPs classes regarding whether Plaintiff had discussed his research in class, and that these contacts by Beiner were designed to retaliate against Plaintiff for filing his original Complaint. 43. Defendant Beiner had not previously contacted students from PlaintifP's classes regarding PlaintifP’s research, despite Beiner and Defendant UALR’s being aware of PlaintifPs research for years. Claim E: Violation of the AFOIA 44, Plaintiff restates and reasserts the facts, contentions, and allegations contained in paragraphs 1 through 43, supra, as if set out word for word herein. 45. Plaintiff, like any citizen of the State of Arkansas, has a right to receive public records from UALR upon request, with the obvious caveat that any exempt information shall be excluded from the records that are provided. See Ark. Code Ann, § 25-19-105(a)(1)(A); Ark. Code Ann. § 25-19-105(f); see generally Hopkins». City of Brinkley, 2014 Ark. 139, 432 S.W.3d 609. 46. Defendants have not established that any exemption applies to the requested records that would allow the redaction of the “Ethnicity,” “LSAT,” and/or “LGPA” information; more to the point, as a matter of law, none of the Steinbuch - Amended Complaint Page 9 of 13information in the “Ethnicity,” “LSAT,” or “LGPA” columns was exempt information under the AFOIA. 47. Accordingly, Defendants’ failure to provide the requested records in a format that includes all non-exempt information is a violation of the AFOIA, for which Plaintiff is entitled to relief from this Court. 48. None of the reasons proffered by Schwartz amount to substantial justification for Defendants? failure to comply with the AFOIA, inasmuch as: a. Plaintiff was on the admissions committee for the admissions periods of the students contained in the November 2013 records that Defendant Schwartz provided to Plaintiff under the AFOIA; and b. The admissions practices are such that Plaintiff could not possibly recall a specific LSAT/GPA combination that would allow identification of specific students, as admissions committee members are not provided with a list of admitted students that contains LSAT scores and undergraduate GPAs once an admission decision is made. c. Defendant Schwartz’s position is not only contrary to his previous release of the same categories of information in 2013,!but it is also contrary to Professor Watkins’ treatise and the most relevant Attorney General’s opinion on the matter; 1One assumes that Defendant Schwartz is not intending to admit that he improperly released information in violation of the AFOIA and FERPA in 2012. Yet, taken at face value, that is exactly what his current position implies. Compare Exhibit A and Exhibit B. Steinbuch - Amended Complaint Page 100f1349.Most importantly—and ultimately fatal to any argument of substantial justification for Schwartz’s position—the analysis for release of records pursuant to FERPA does not turn on whether Plaintiff, in his particularized position as @ former member of the admissions committee, might identify a specific student, but whether the information would allow “a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.” 34 CER. § 99.3 (emphasis added); sce also Ark. Op. Att’y Gen, 2013-027 (“a requester’s identity—and, a fortiori, his or her unique expertise or knowledge—is generally irrelevant to assessing the custodian’s disclosure obligations”). Claim II: Violation of the WBA 50. Plaintiffrestates and reasserts the facts, contentions, and allegations contained in paragraphs 1 through 49, supra, as if set out word for word herein. 51. Plaintiff, as a professor at UALR’s Bowen School of Law, is a “public employee” as that term is used in the WBA. See Ark. Code Ann. § 21-1-602(4). 52. Defendant UALR, as a public university, is expressly a “public employer” vis-& vis Plaintiff as that term is used in the WBA. See Ark. Code Ann. § 21-1- 602(5)(B). 53. Defendant Beiner, as Associate Dean of Academic Affairs at Bowen, is an agent of Defendant UALR, and her actions in this matter were done at the direction, behest, acquiescence, and/or urging of UALR. Steinbuch - Amended Complaint Page 11 of 1354. Because Defendant Beiner had not contacted PlaintifP's students regarding PlaintifP’s research until after PlaintifPs original Complaint, which sought records relevant to his research, was filed, her contacting of the students is retaliatory on its face. 55. Defendant Beiner’s contacting of minority students specifically to ask them if Plaintiff had discussed his research regarding minority students is an “adverse action” as that term is used in the WBA, inasmuch asher contact was an effort to “otherwise discriminate or retaliate against a public employee in any manner that affects the employee’s employment.” Ark. Code Ann. § 21-1-602(1). 56. Defendant Beiner’s actions have affected PlaintifPs employment by sowing discord among the students, attempting to undermine Plaintiff's credibility with certain segments of the student population, and insinuating that something improper or untoward is behind Plaintiff's research. Prayer for Relief 57. Plaintiffis entitled to a hearing on the AFOIA aspect matter. See Ark. Code Ann. § 25-19-107(b); see also Orsini, 340 Ark. 665, 13 S.W.3d 167. 58. Plaintiff waives the seven-day requirement under Ark. Code Ann. § 25-19-107(b) to the extent it is read to require @ hearing to be held within seven days from the date of filing. 59. Plaintiff asserts that one or more depositions might possibly be needed in this matter, and he asks that the hearing be set no sooner than ninety days from the date of filing. Steinbuch - Amended Complaint Page 12 of 1360. Plaintiff, through undersigned counsel, reserves the right to seek reasonable attorney’s fees and costs from the Arkansas Claims Commission upon successful completion of the AFOIA component of this matter. See Ark. Code Ann. § 25-19- 107(e)(2)(B). 61. Plaintiff, through undersigned counsel, reserves the right to seek reasonable attomey’s fees and costs from Defendant UALR upon successful completion of the WBA component of this matter. See Ark. Code Ann. § 21-1-605(6). WHEREFORE the Plaintiff, Robert Steinbuch, prays that this Court will hold a hearing and enter an Order finding: (1) Defendants UALR and Schwartz violated the AFOIA through improper redaction of requested records; (2) Defendants UALR and Schwartz were not substantially justified in their refusal to provide the records as requested; (3) Plaintiff is entitled to unredacted copies of the records; (4) Defendants UALR and Beiner violated the WBA through retaliatory actions against Plaintiff that were taken as a result of his filing the original complaint in this matter; (5) Plaintiff is entitled to junctive relief, actual damages, and attorney’s fees and costs; (6) Plaintiff is entitled to any and all such additional relief as is necessary and proper. Respectfully submitted, {s/ Matthew D. Campbell Ark. Bar No. 2009032 Pinnacle Law Firm, PLLC P.O. Box 7469 Little Rock, AR 72217 P: (501) 396-9246 F: (S01) 421-0189 matt@pinnaclelawfirm.com Attorney for Plaintiff Steinbuch - Amended Complaint Page 13 of 13