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Supreme Court of Arkansas Weighs Hospital's Private Doctors Against FOIA

The Supreme Court of Arkansas delivered opinion in April 2012 in a Freedom of Information Act (FOIA) action levied by a law firm against three doctors and ancillary institutions involved in a medical malpractice suit. The firm of Harrill & Sutter, PLLC, appealed an order of the Saline County Circuit Court finding that the named appellees were not custodians of public records owned by the named institutions, nor did they control said records, nor were the records sought by appellants public records at all, and thus subject to attorney-client privilege and were protected work product.

Appellees filed countersuit, seeking declaration that the FOIA did not apply, and if it should apply it was in this case an unconstitutional violation of the attorney-client privilege. Assuming constitutionality in the instant circumstances, the counterclaimants sought protection against production of information pending final disposition of the underlying medical malpractice suit.

At the FOIA trial in May 2010, Harrill & Sutter moved to nonsuit all of its claims. The court orally granted that motion but procured no written order. Consequently, the Supreme Court of Arkansas dismissed the first appeal because there was no final judgment in the FOIA case.

Throughout the convoluted course of litigation in this matter, with both sides occasionally assuming the legal posture of the other, consistent were the following facts: Drs. Farrar, Bass, and Thompson were the primary focus of the malpractice litigation; were private individuals being sued individually and personally; were represented by private attorneys and insured against such litigation individually; they did not access the public records of the named institutions in the court of their conduct relevant to the case; they were not subject as such to the FOIA.

Harrill & Sutter asserted in the instant appeal that the circuit court erred in allowing the countersuit to go forward, that the constitutionality of the FOIA was found to be not at issue because the FOIA had no application to the records requested. Harrill & Sutter also alleged the circuit court erred in allowing the countersuit to go forward because the appellees/counterclaimants lacked standing and their countersuit was rendered moot when Harrill & Sutter nonsuited. The Arkansas Supreme Court noted the issue of standing was not properly addressed in the lower court, so they could not address that issue in any like manner at their level. The Supreme Court did endorse Appellee’s standing for other reasons.

The Supreme Court ruled the appellee’s counterclaim remained valid, that the issue of applicability of the FOIA remained broad but subject to scrutiny, even though the records in question did not fall under the purview of the FOIA. The court affirmed the Saline County Circuit Court’s finding for appellees. See: Harrill & Sutter PLLC v Farrar, --- S.W.3d ---, 2012 Ark. 180 (Ark. 2012); 2012 WL 1435648.

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Related legal case

Harrill & Sutter PLLC v Farrar