Cite as 2024 Ark. App. 1 ARKANSAS COURT OF APPEALS DIVISIONS I, III & IV No. CV-22-751
DONALD MARTIN Opinion Delivered January 10, 2024 APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH V. DIVISION [NO. 60CV-22-4393] ERIC HIGGINS, AS SHERIFF OF PULASKI COUNTY, AR HONORABLE TIMOTHY DAVIS FOX, APPELLEE JUDGE
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
BART F. VIRDEN, Judge
Appellant Donald Martin appeals from the Pulaski County Circuit Court’s order
denying his request for material under the Arkansas Freedom of Information Act (FOIA)
after concluding that an exemption for undisclosed investigations applied. 1 In reaching its
decision, the trial court relied on our decision in Hyman v. Sadler, 2017 Ark. App. 292, 521
S.W.3d 167. The trial court stated that Hyman “specifically addressed” the scope of the
undisclosed-investigations exemption and ruled that the case stands for the proposition that
a criminal investigation remains open, or is considered ongoing, until a plea is entered or
there has been a verdict following a trial. Because the Hyman case did not so hold, and
1 Martin’s complaint dealt with four FOIA requests. At issue in this appeal is the third request. because the trial court’s order here was based on its erroneous interpretation of Hyman, we
reverse and remand for further proceedings.
Two criminal cases were filed against Jerry Wardlaw, one in December 2020 and
another in February 2021. In July 2022, Martin filed a FOIA action against appellee Eric
Higgins, as sheriff of Pulaski County, Arkansas, in part, to gain “arrest reports, to include
evidence forms, officer notes, crime lab submission sheets, witness statements, video
recordings and any other files contained therein” for Jerry Wardlaw. A plea hearing on
Wardlaw’s criminal cases was scheduled for August 1, 2022. Wardlaw did not enter a guilty
plea as expected and, instead, opted to go to trial in late November.
The hearing on Martin’s FOIA requests was held August 2—the day after Wardlaw’s
failed plea negotiations. Higgins claimed to have been prepared to disclose the arrest reports
to Martin but refused to release the reports when Wardlaw’s plea deal unraveled, saying that
the investigation was “ongoing” until after the conclusion of Wardlaw’s trial. The trial court
agreed with Higgins’s assertion that, pursuant to the Hyman precedent, the undisclosed-
investigations exemption applied to prevent disclosure of the arrest reports to Martin because
Wardlaw had not ultimately entered a guilty plea and would stand trial later that year. The
trial court thus denied Martin’s third FOIA request.
We liberally interpret the FOIA to accomplish its broad and laudable purpose that
public business be performed in an open and public manner. Holladay v. Glass, 2017 Ark.
App. 595, 534 S.W.3d 173. Furthermore, we broadly construe the FOIA in favor of
disclosure. Id. An exemption to disclosure exists for “undisclosed investigations by law
2 enforcement agencies of suspected criminal activity.” Ark. Code Ann. § 25-19-105(b)(6)
(Supp. 2023). The trial court expressly relied on our decision in Hyman as having established
a bright-line rule for application of the undisclosed-investigations exemption.
In Hyman, attorney William Whitfield Hyman filed a FOIA complaint to compel
defendants, collectively referred to as the Arkansas State Police (ASP), to respond to a records
request to include dash-camera surveillance video of Nathan Alexander Earp’s arrest for
driving while intoxicated. The trial court dismissed the complaint as moot because Hyman
had received all of the material he had requested. Hyman raised several points on appeal,
but we affirmed because the trial court correctly determined that the issue was moot, and we
specifically declined to address Hyman’s other arguments, including whether the trial court
erred in determining that the ASP had rightly denied his request because of an undisclosed
investigation. See 2017 Ark. App. 292, at 8, 521 S.W.3d at 171.
Here, the trial court appears to have relied on a single—somewhat awkward—sentence
from Hyman: “We agree with ASP’s contention that the record in this case establishes that
ASP had an ongoing criminal investigation regarding Earp’s DWI arrest, then considered
the investigation closed when Earp entered a guilty plea.” Id. at 7, 521 S.W.3d at 171. Parsing
the quoted sentence as best we can, this court simply expressed agreement with what the
record on appeal showed: (1) the ASP had had an ongoing investigation, but (2) the ASP had
considered the matter closed when Earp entered a guilty plea. In this case, the trial court
erred as a matter of law in denying Martin’s FOIA request on the basis of its misapprehension
of the law established by Hyman. The trial court essentially conflated our simple
3 acknowledgement of a party’s contention and belief with a statement of law—specifically, a
bright-line rule on what constitutes an undisclosed, or ongoing, investigation.
The trial court’s analysis of the question whether the material requested by Martin
was exempt from disclosure under the FOIA ended with its acceptance of Higgins’s assertion
that there was an ongoing investigation as a matter of law pursuant to Hyman inasmuch as
Wardlaw did not plead guilty. Accordingly, although a witness was present and could have
testified about the contents of the withheld materials and the ongoing nature of any
investigation, the trial court declined to hear any testimony after concluding that Hyman
settled the issue as a matter of law.2 Thus, Higgins was not held to his burden of proving that
an exemption applied to prevent disclosure of Wardlaw’s arrest reports.3
2 Although the dissent refers to Lt. Cody Burk’s “proffered testimony” and a so-called proposed stipulation, the hearing transcript indicates that, at most, Lieutenant Burk would have testified that he had communications with Martin and “that there was information that was being withheld subject to an investigation exception.” The hearing transcript clearly shows that Higgins’s basis for withholding the information requested by Martin was the simple fact that Wardlaw had not pled guilty, which led the trial court to conclude that Lieutenant Burk’s testimony, i.e., evidence, was unnecessary. 3 The dissenting judges assert that it is immaterial that the trial court misstated the Hyman holding from the bench. They would like to ignore the trial court’s oral ruling by stating that the written order controls. Of course an order is effective only when reduced to writing. Moreover, generally speaking, a written order controls over oral pronouncements, but that is the case only when there is a conflict or a discrepancy between the oral ruling and the written order. See Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823 (noting that, to the extent that the trial court’s bench ruling conflicted with its written order, if at all, the written order controls over the oral ruling); Radford v. State, 2018 Ark. App. 89, 538 S.W.3d 894 (recognizing that a discrepancy between a sentencing court’s oral ruling and the subsequent written order is decided in favor of the written order). Here, however, there is no conflict or discrepancy between the trial court’s oral ruling and its written order. The oral ruling explains the simple denial in the written order, and we routinely rely on a trial court’s oral
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Cite as 2024 Ark. App. 1 ARKANSAS COURT OF APPEALS DIVISIONS I, III & IV No. CV-22-751
DONALD MARTIN Opinion Delivered January 10, 2024 APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH V. DIVISION [NO. 60CV-22-4393] ERIC HIGGINS, AS SHERIFF OF PULASKI COUNTY, AR HONORABLE TIMOTHY DAVIS FOX, APPELLEE JUDGE
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
BART F. VIRDEN, Judge
Appellant Donald Martin appeals from the Pulaski County Circuit Court’s order
denying his request for material under the Arkansas Freedom of Information Act (FOIA)
after concluding that an exemption for undisclosed investigations applied. 1 In reaching its
decision, the trial court relied on our decision in Hyman v. Sadler, 2017 Ark. App. 292, 521
S.W.3d 167. The trial court stated that Hyman “specifically addressed” the scope of the
undisclosed-investigations exemption and ruled that the case stands for the proposition that
a criminal investigation remains open, or is considered ongoing, until a plea is entered or
there has been a verdict following a trial. Because the Hyman case did not so hold, and
1 Martin’s complaint dealt with four FOIA requests. At issue in this appeal is the third request. because the trial court’s order here was based on its erroneous interpretation of Hyman, we
reverse and remand for further proceedings.
Two criminal cases were filed against Jerry Wardlaw, one in December 2020 and
another in February 2021. In July 2022, Martin filed a FOIA action against appellee Eric
Higgins, as sheriff of Pulaski County, Arkansas, in part, to gain “arrest reports, to include
evidence forms, officer notes, crime lab submission sheets, witness statements, video
recordings and any other files contained therein” for Jerry Wardlaw. A plea hearing on
Wardlaw’s criminal cases was scheduled for August 1, 2022. Wardlaw did not enter a guilty
plea as expected and, instead, opted to go to trial in late November.
The hearing on Martin’s FOIA requests was held August 2—the day after Wardlaw’s
failed plea negotiations. Higgins claimed to have been prepared to disclose the arrest reports
to Martin but refused to release the reports when Wardlaw’s plea deal unraveled, saying that
the investigation was “ongoing” until after the conclusion of Wardlaw’s trial. The trial court
agreed with Higgins’s assertion that, pursuant to the Hyman precedent, the undisclosed-
investigations exemption applied to prevent disclosure of the arrest reports to Martin because
Wardlaw had not ultimately entered a guilty plea and would stand trial later that year. The
trial court thus denied Martin’s third FOIA request.
We liberally interpret the FOIA to accomplish its broad and laudable purpose that
public business be performed in an open and public manner. Holladay v. Glass, 2017 Ark.
App. 595, 534 S.W.3d 173. Furthermore, we broadly construe the FOIA in favor of
disclosure. Id. An exemption to disclosure exists for “undisclosed investigations by law
2 enforcement agencies of suspected criminal activity.” Ark. Code Ann. § 25-19-105(b)(6)
(Supp. 2023). The trial court expressly relied on our decision in Hyman as having established
a bright-line rule for application of the undisclosed-investigations exemption.
In Hyman, attorney William Whitfield Hyman filed a FOIA complaint to compel
defendants, collectively referred to as the Arkansas State Police (ASP), to respond to a records
request to include dash-camera surveillance video of Nathan Alexander Earp’s arrest for
driving while intoxicated. The trial court dismissed the complaint as moot because Hyman
had received all of the material he had requested. Hyman raised several points on appeal,
but we affirmed because the trial court correctly determined that the issue was moot, and we
specifically declined to address Hyman’s other arguments, including whether the trial court
erred in determining that the ASP had rightly denied his request because of an undisclosed
investigation. See 2017 Ark. App. 292, at 8, 521 S.W.3d at 171.
Here, the trial court appears to have relied on a single—somewhat awkward—sentence
from Hyman: “We agree with ASP’s contention that the record in this case establishes that
ASP had an ongoing criminal investigation regarding Earp’s DWI arrest, then considered
the investigation closed when Earp entered a guilty plea.” Id. at 7, 521 S.W.3d at 171. Parsing
the quoted sentence as best we can, this court simply expressed agreement with what the
record on appeal showed: (1) the ASP had had an ongoing investigation, but (2) the ASP had
considered the matter closed when Earp entered a guilty plea. In this case, the trial court
erred as a matter of law in denying Martin’s FOIA request on the basis of its misapprehension
of the law established by Hyman. The trial court essentially conflated our simple
3 acknowledgement of a party’s contention and belief with a statement of law—specifically, a
bright-line rule on what constitutes an undisclosed, or ongoing, investigation.
The trial court’s analysis of the question whether the material requested by Martin
was exempt from disclosure under the FOIA ended with its acceptance of Higgins’s assertion
that there was an ongoing investigation as a matter of law pursuant to Hyman inasmuch as
Wardlaw did not plead guilty. Accordingly, although a witness was present and could have
testified about the contents of the withheld materials and the ongoing nature of any
investigation, the trial court declined to hear any testimony after concluding that Hyman
settled the issue as a matter of law.2 Thus, Higgins was not held to his burden of proving that
an exemption applied to prevent disclosure of Wardlaw’s arrest reports.3
2 Although the dissent refers to Lt. Cody Burk’s “proffered testimony” and a so-called proposed stipulation, the hearing transcript indicates that, at most, Lieutenant Burk would have testified that he had communications with Martin and “that there was information that was being withheld subject to an investigation exception.” The hearing transcript clearly shows that Higgins’s basis for withholding the information requested by Martin was the simple fact that Wardlaw had not pled guilty, which led the trial court to conclude that Lieutenant Burk’s testimony, i.e., evidence, was unnecessary. 3 The dissenting judges assert that it is immaterial that the trial court misstated the Hyman holding from the bench. They would like to ignore the trial court’s oral ruling by stating that the written order controls. Of course an order is effective only when reduced to writing. Moreover, generally speaking, a written order controls over oral pronouncements, but that is the case only when there is a conflict or a discrepancy between the oral ruling and the written order. See Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823 (noting that, to the extent that the trial court’s bench ruling conflicted with its written order, if at all, the written order controls over the oral ruling); Radford v. State, 2018 Ark. App. 89, 538 S.W.3d 894 (recognizing that a discrepancy between a sentencing court’s oral ruling and the subsequent written order is decided in favor of the written order). Here, however, there is no conflict or discrepancy between the trial court’s oral ruling and its written order. The oral ruling explains the simple denial in the written order, and we routinely rely on a trial court’s oral
4 Whether an investigation is open and ongoing is a question of fact for the trial court.
Dep’t of Ark. State Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265. Here,
without any admitted evidence on the subject, it is impossible to know whether Wardlaw’s
arrest reports were sufficiently investigatory in nature to fit within the undisclosed-
investigations exemption to the FOIA. See Hengel v. City of Pine Bluff, 307 Ark. 457, 821
S.W.2d 761 (1991) (holding that arrest records, among other items, were not subject to
disclosure under the FOIA because, although there was testimony admitted on the topic, the
record on appeal did not demonstrate that the arrest records were sufficiently investigatory
in nature for application of the undisclosed-investigations exemption). According to J.
Watkins, The Arkansas Freedom of Information Act 72 (1988), subsection (b)(6) of the FOIA is
meant to exempt “internal ‘work product’ materials containing details of an investigation.”
See id. at 461, 821 S.W.2d at 763. Moreover, our supreme court held in Johninson v. Stodola,
316 Ark. 423, 872 S.W.2d 374 (1994), that it is incumbent upon the trial court to first review
the relevant material in camera before determining whether an exemption applies. Here,
there is nothing in the record to indicate that the trial court conducted any such review
statements from the bench to inform or to explain the reasoning behind a written order. See, e.g., Grindstaff v. Strickland, 2017 Ark. App. 634, 535 S.W.3d 661 (quoting at length and considering the trial court’s oral findings); Kimbrough v. Kimbrough, 83 Ark. App. 179, 119 S.W.3d 66 (2003) (considering both the trial court’s oral and written findings); see also Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986) (reversing a change-of-custody decision because the trial court’s oral findings demonstrated that the trial court had erroneously placed the burden of proof on the wrong party). Here, the trial court’s statements from the bench demonstrate that its overriding, if not sole, reason for denying Martin’s third FOIA request was its misunderstanding of our holding in Hyman.
5 before concluding that the undisclosed-investigations exemption applied given the
“precedent” in Hyman.
To summarize, we reverse the trial court’s decision because the trial court erred as a
matter of law in its application of the undisclosed-investigations exemption on the basis of
its misunderstanding of our decision in Hyman. Again, Hyman did not establish a bright-line
rule on what constitutes an undisclosed, or an ongoing, investigation. Moreover, there is
some question whether Martin’s requested arrest reports for Wardlaw are sufficiently
investigatory in nature to qualify under the exemption. On remand, the trial court is
instructed to conduct an in camera review of the relevant material as contemplated by
Johninson, supra, and to perform a meaningful fact-finding inquiry before making its decision
on whether the undisclosed-investigations exemption applies to Wardlaw’s arrest reports.4
4 The dissenting judges fault the majority for failing to answer a question of law—the scope of the undisclosed-investigations exemption—but to do so would depend on factual findings that the trial court here did not make. The dissent would essentially act as a surrogate trial court and supply those missing factual findings to reach this question of law. Although traditional equity cases are reviewed de novo as to both findings of fact and conclusions of law, Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), the same is not true for actions at law, such as we have here. An appellate court cannot make factual findings in actions at law. Charleston Sch. Dist. No. 9 v. Sebastian Cnty. Bd. of Educ., 300 Ark. 242, 778 S.W.2d 614 (1989); Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965). “In law cases, it is not our province to decide issues of fact in the first instance.” Boone Cnty. Abstract & Title Co. v. Boone Cnty., 252 Ark. 255, 256, 478 S.W.2d 429, 430 (1972); see also Leach v. Smith, 130 Ark. 465, 197 S.W. 1160 (1917).
Moreover, we will not presume that a trial court made the necessary findings to support a judgment when, as here, it is apparent from its stated reasons that the trial court acted under an erroneous conception of the applicable law and thus failed to make factual findings on an essential issue. See, e.g., Britt v. State, 2022 Ark. App. 58, 639 S.W.3d 919. The proper remedy in such actions at law is to remand for the trial court to make factual
6 We express no opinion on whether the trial court should release the requested material to
Martin.
Reversed and remanded for further proceedings.
HARRISON, C.J., and WOOD, HIXSON, MURPHY, and BROWN, JJ., agree.
GLADWIN, GRUBER, and BARRETT, JJ., dissent.
ROBERT J. GLADWIN, Judge, dissenting. “The dispute here is what is the definition
of an ongoing criminal investigation now that the parties are negotiating a plea
arrangement.” This statement by Martin’s counsel to the circuit court succinctly states the
issue presented to both the circuit court and to this court. The majority fails to answer this
question. Because I believe that the issue is properly presented and briefed, I would address
the merits of the case. Therefore, I respectfully dissent.
On August 2, 2022, the circuit court held an expeditated hearing at Martin’s request
to address four separate Freedom of Information Act (FOIA) requests filed by Martin.
Among these requests was a request seeking “arrest reports, to include evidence forms, officer
notes, crime lab submission sheets, witness statements, video recordings, and any other files
contained therein” for Jerry Wardlaw. It is undisputed that Mr. Wardlaw had a trial date set
for August 1, 2022, that was continued until November 2022 because Mr. Wardlaw refused
to enter a plea of guilty to the pending criminal charges against him. At the hearing, the State
findings. See Charleston, supra; Houston, supra; Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989).
7 asserted that it would be ready to release any and all information, but because Mr. Wardlaw
had failed to plead, the investigation in the criminal case was ongoing.
The State announced that it had one witness, Lieutenant Cody Burk, who would
testify regarding Martin’s requests, including the State’s basis for relying on the ongoing-
criminal-investigation exception to Martin’s third FOIA request. In support of this position,
the State cited Hyman v. Sadler, 2017 Ark. App. 292, 521 S.W.3d 167. At no time during the
hearing did Martin’s counsel object to the proposed stipulation of Lieutenant Burk’s
proffered testimony. Nor did Martin’s counsel argue against the State’s position regarding
Hyman or offer any other case law related to the issue of the ongoing- criminal-investigation
exception to FOIA. In fact, the circuit court stated, “Anything further Mr. Steinbuch, about
what’s denominated as Third FOIA Request?” Martin’s counsel responded, “No, the issue is
as I described, the scope of the ongoing-investigation exception.”
The circuit court’s resulting order states:
Plaintiff’s request on June 22, 2022, to Separate Defendant for “arrest reports, to include evidence forms, officer notes crime lab submission sheets, witness statements video recordings and any other files contained therein for Jerry Wardlaw from January 1, 2018 to present” as outlined in Plaintiff’s Complaint as his “THIRD FOIA REQUEST” is DENIED and DISMISSED WITH PREJUDICE.
The majority opinion states that the circuit court declined to hear any testimony at
the hearing. I submit that the circuit court accepted without objection Burk’s stipulated
testimony in an effort to address all four of Martin’s FOIA requests. The majority also states
that the circuit court conflated our holding in Hyman, supra. First there was scant discussion
of Hyman, and the circuit court certainly did not parse out a single sentence of the opinion.
8 Further, even if the circuit court misstated from the bench our holding, it is immaterial
because the written order simply denied the request. It is well established that the circuit
court’s written order supersedes any oral statements from the bench. Even assuming the
circuit court’s statement regarding Hyman constituted an oral ruling, an oral order
announced from the bench does not become effective until reduced to writing and filed.
Steinbuch v. Univ. of Ark., 2019 Ark. 356, at 11, 589 S.W.3d 350, 357. The written order
controls. Id.
During this hearing, there were neither evidentiary errors nor procedural arguments
that would warrant a remand. The circuit court held that under the agreed facts of this case,
the ongoing-investigation exception should apply. There is no reason that this court should
not answer that question.1
GRUBER and BARRETT, JJ., join.
Corbitt Law Firm, PLLC, by: Chris P Corbitt, for appellant.
Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Megan D. Hargaves and Cara D.
Butler, for appellee.
1 I suspect that by this time, the criminal charges against Mr. Wardlaw have been resolved, making the issue moot, as is the exact holding of Hyman.