The Arkansas attorney general’s office doesn’t want a Little Rock attorney to use the state’s Freedom of Information Act against it.
The attorney general’s office has asked a federal judge to block the release of attorney-client and “work product”-privileged documents that attorney Abtin Mehdizadegan of the Little Rock office of Hall Booth Smith asked for under the FOI Act until the completion of a case involving the attorney general’s office.
This month, Mehdizadegan filed the requests with more than two dozen defendants in a lawsuit that challenged the constitutionality of Act 629, which criminalized such hemp-derived cannabinoid products as delta-8 THC.
U.S. District Court Judge Billy Roy Wilson sided with the plaintiffs, mostly hemp-related companies, and issued a preliminary injunction in September, barring Arkansas from enforcing the legislation.
The attorney general’s office has appealed that ruling to the 8th U.S. Circuit Court of Appeals in St. Louis.
But in the meantime, Mehdizadegan filed FOI requests with the defendants, most of whom are prosecuting attorneys in Arkansas, asking if they had had any communication with the attorney general’s office about the case since Sept. 1. He asked for documents between the defendants and the attorney general’s office related to whether the defendants agreed to appeal.
Jordan Broyles, senior assistant attorney general, asked Wilson to prevent the documents from being released until after the litigation.
Arkansas Attorney General Tim Griffin said in an email to Arkansas Business that Mehdizadegan was trying to circumvent the discovery rules.
“While the Arkansas FOIA contains no attorney/client privilege or work-product privilege, the federal law does,” Griffin wrote. “And two sitting federal judges in Arkansas have made clear that when cases, like this one, involve primarily federal claims, the federal law of privilege applies, not the state law. The plaintiffs’ attorney can’t use the FOIA to avoid the federal discovery rules.”
Mehdizadegan said he wasn’t trying to circumvent discovery rules.
“FOIA requests are not discovery requests, and the Attorney General’s arguments to the contrary are unfounded,” he said in an email. “The Attorney General’s office has repeatedly held that there is no attorney-client privilege under the FOIA, and they should be estopped from taking inconsistent positions in this case,” he wrote.
Robert Steinbuch, a professor at the University of Arkansas at Little Rock Bowen School of Law, agreed.
“It’s this mistaken belief that the federal court is empowered to eviscerate the state’s freedom of information,” Steinbuch said. “There have been a handful of incorrect federal district court opinions saying that the district court can do that. But nobody would ever bring that ridiculous claim in state court.”
He said that state courts have ruled that there is no attorney-client privilege between Arkansas government attorneys and their agency and the agencies they represent.
In the filing, Mehdizadegan said that he’s already received more than two dozen responses to his request. Most of the defendants said they didn’t have any contact with the attorney general’s office after Wilson’s preliminary injunction order was entered, he said. The lack of communication also shows that the attorney general’s office didn’t have the authority to file an appeal on the defendants’ behalf, Mehdizadegan wrote.
“The Attorney General’s motion is dangerous because it constitutes a prior restraint on speech; and it is silly because the requests are almost completely satisfied, and nothing contained in the documents produced show anything more than the Attorney General’s failure to communicate with his clients and to obtain their permission to file documents,” Mehdizadegan wrote.
Mehdizadegan asked that the request be denied and said the plaintiffs should be awarded fees.
If the attorney general’s request is granted, Mehdizadegan said in the filing, it “would deprive every Arkansan of an opportunity to have an Arkansas court — one bound by Arkansas law — to resolve a FOIA contest.”
The motion for the protective order was pending as of Wednesday.
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