Donald Martin v. Eric Higgins, as Sheriff of Pulaski County, Arkansas

2026 Ark. App. 104

• Court: Court of Appeals of Arkansas
• Decided: February 18, 2026
• Status: Published

Opinion

Cite as 2026 Ark. App. 104 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-24-743

Opinion Delivered February 18, 2026

DONALD MARTIN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, SIXTH DIVISION V. [NO. 60CV-22-4393]

ERIC HIGGINS, AS SHERIFF OF HONORABLE TIMOTHY DAVIS PULASKI COUNTY, ARKANSAS FOX, JUDGE APPELLEE AFFIRMED IN PART; REVERSED AND REMANDED IN PART

BRANDON J. HARRISON, Judge

Donald Martin appeals the Pulaski County Circuit Court order (1) finding that

Pulaski County Sheriff Eric Higgins had correctly withheld certain requested records

pursuant to the undisclosed-investigations exemption to the Arkansas Freedom of

Information Act (FOIA) and (2) denying Martin’s request for attorney’s fees. Martin

contends that the circuit court failed to follow this court’s mandate in Martin v. Higgins,

2024 Ark. App. 1, 682 S.W.3d 357 (Martin I), and that the circuit court erred in not

awarding him attorney’s fees. We affirm on Martin’s first point but reverse and remand on

the second point.

This case began in July 2022 when Martin filed a FOIA action against Higgins, as

Pulaski County sheriff, and the Pulaski County Sheriff’s Prevention and Reentry

1 Foundation (the Foundation). 1 Martin sought documents pertaining to (1) the Foundation

(First Request); (2) “written reports, body and vehicle video/audio in reference to an alarm

call to Jerry’s Deli, 2800 East Dixon Road. Occurred on Sunday 4/17/2022” (Second

Request); 2 (3) “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 (Third Request); (4) and all financial documents and records pertaining to the

Junior Deputy Program from 1 January 2018 to 22 June 2022 (Fourth Request).

Wardlaw was the owner of Jerry’s Deli and a defendant in two criminal cases. A plea

hearing on Wardlaw’s criminal cases was held on 1 August 2022; Wardlaw did not enter a

guilty plea as expected and instead opted to go to trial in late November.

The next day, August 2, the court convened a hearing on Martin’s FOIA requests.

Regarding the Third Request, Higgins explained that he was prepared to disclose the arrest

reports to Martin if Wardlaw had pled guilty on August 1, but because Wardlaw chose to

go to trial, the investigation was ongoing until after the conclusion of the trial. The circuit

court agreed with Higgins that pursuant to Hyman v. Sadler, 2017 Ark. App. 292, 521

S.W.3d 167, a criminal investigation remains open until a judgment, a plea is entered, or a

verdict following a jury trial. The court therefore denied the Third Request. 3

1 The Foundation was ultimately dismissed from the case with prejudice and is not a party to this appeal. 2 This request actually encompassed two different requests under FOIA—22-255 and 22-364. Request 22-255 was for information regarding an alarm call to Jerry’s Deli on 17 April 2022, and Request 22-364 was for “all records that Jimmy Foreman received.” 3 The court also denied and dismissed the Second and Fourth Requests and dismissed the First Request because the Foundation was not subject to FOIA. 2 Martin appealed the denial of the Third Request, and on appeal, this court held that

the circuit court’s order was based on an erroneous interpretation of Hyman and that Hyman

did not establish a bright-line rule on what constitutes an undisclosed, or ongoing,

investigation. See Martin I, supra. Instead, this court explained that whether an investigation

is open and ongoing is a question of fact for the circuit court, and we reversed and remanded

with instructions for the circuit court “to conduct an in camera review of the relevant

material . . . and to perform a meaningful fact-finding inquiry before making its decision on

whether the undisclosed-investigations exemption applies to Wardlaw’s arrest reports.” Id.

at 6, 682 S.W.3d at 360.

Meanwhile, on 15 September 2022, while Martin’s appeal was pending, he moved

for attorney’s fees pursuant to Ark. Code Ann. § 25-19-107(d)(1) (Repl. 2024), which

provides,

[T]he court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who, after filing suit, has obtained from the defendant a significant or material portion of the public information he or she requested, unless the court finds that the position of the defendant was substantially justified.

Martin argued that for all of his FOIA requests except the Third Request, Higgins had

provided records after the lawsuit was filed and well beyond three days after the requests

were made, so he was “explicitly entitled” to attorney’s fees. The circuit court ruled that

the motion would be taken under advisement pending resolution of the case on appeal.

After this court’s remand, Martin filed an updated affidavit for attorney’s fees and

costs on 2 June 2024. He again asserted that Higgins had untimely complied with the First,

Second, and Fourth Requests and produced the majority of the “voluminous” records on

3 2 August 2022, the day of the hearing in this case. Martin argued that he had succeeded

through “litigation-induced compliance” on the First, Second, and Fourth Requests and

that the circuit court had “aptly dismissed those causes of action thereafter.” Now that the

court of appeals had reversed the circuit court on the Third Request, he contended, he had

succeeded on all counts against Higgins. Martin asked the court to award him $25,489.90

in costs and fees.

In response, Higgins first asserted that Martin’s request was premature because the

matter had yet to be completely resolved on the merits. Higgins also argued that Martin

could not show (1) that he obtained a “significant or material portion of the public

information he or she requested” after filing suit or (2) that Higgins’s position was not

substantially justified. See Ark. Code Ann. § 25-19-107(d)(1). Higgins attached to this

response the affidavit of Lieutenant Cody Burk, the public information officer with the

Pulaski County Sheriff’s Office, who verified that Martin had made a total of forty-two

separate requests to the sheriff’s office under FOIA, that fourteen of these requests were

received before Martin filed his complaint, and that many of the requests were broad in

scope and required Burk and his team to review the documents carefully for any exceptions

that may apply under FOIA and for redactions that needed to be made.

On 26 June 2024, Higgins moved to dismiss Martin’s FOIA claim related to the

Third Request. Higgins explained that during the pendency of the appeal, Wardlaw’s

criminal investigation had concluded and that Higgins had provided Martin with

information responsive to his Third Request (largely in the nature of bodycam video

footage). Higgins also stated that three days after the court of appeals issued its opinion,

4 Martin requested all records (1) demonstrating that there was an ongoing investigation of

Jerry Wardlaw on and/or after 2 August 2022; (2) discussing whether there was an ongoing

investigation of Jerry Wardlaw on and/or after 2 August 2022, including internal

communications within the Mitchell Williams law firm that the firm would characterize as

privileged or work product had its client not been a public entity; and (3) providing the full

cost and detailed billing of the Mitchell Williams law firm in the FOIA litigation of Martin

I in both the circuit and appellate courts.

According to Higgins, records responsive to those requests were provided on 23

January 2024. Those records consisted of all the billing records from Mitchell Williams

with respect to the matter; sheriff’s office notes concerning the FOIA requests related to the

Jerry’s Deli investigation; a memo dated 13 July 2022 from Lieutenant Mike Blain to Chief

Earnest Whitten regarding the Pulaski County Sheriff’s Office gambling operation search

and seizure conducted on 18 November 2020, which included Jerry’s Deli; and five pages

of Higgins’s counsel’s notes on each FOIA request made in preparation for the 2 August

2022 hearing.

Higgins attached these same documents to the motion to dismiss and asserted that

the documents supported his reliance on the undisclosed-investigations exemption. Higgins

asked the court to review the exhibits, find that he rightly withheld the responsive records

pursuant to the undisclosed-investigations exemption to FOIA, and dismiss Martin’s

pending FOIA claim with respect to the Third Request. Higgins acknowledged that the

Third Request was rendered moot when he produced the records but noted that the FOIA

claim was still unresolved. In addition, the court of appeals had instructed the circuit court

5 to conduct a review of the relevant materials and to determine whether the exemption

applies. Martin responded and agreed that “all of his claims are satisfied and now moot and,

as such may be dismissed, so that the Court can decide the attorney’s fees motion.”

On 16 July 2024, the circuit court entered an order stating that it had complied with

the court of appeals mandate and conducted a “meaningful fact-based inquiry” concerning

all of the documents attached to Higgins’s motion to dismiss. According to the court, the

parties had “recognized in their pleading that factually, those are the materials defendant

Higgins withheld pursuant to the claims FOIA exemption.” Further, the court stated that

if there were any other documents or evidentiary matters, Martin had not produced them

and in fact pled that the Third Request was moot.

The court found that after its mandated in camera review of all relevant documents

and a review of the pleadings, it had concluded that Higgins correctly withheld the requested

records pursuant to the undisclosed-investigations exemption to FOIA. So Martin was not

the prevailing party as to the Third Request. The court also noted that Martin’s other FOIA

requests had been denied and dismissed in August 2022, but he chose to appeal only the

denial of the Third Request. Thus, as a matter of law, Martin was not the prevailing party

with respect to the other dismissed FOIA requests. The court denied Martin’s request for

attorney’s fees and costs, found that all matters on remand had been fully adjudicated, and

dismissed the case with prejudice.

Martin moved for reconsideration and argued that the circuit court was “wrong as

to the facts, as to what the law is, and how the law applies.” He contended that he was the

“prevailing party” because it was only after he filed suit that Higgins produced “all but one

6 of the voluminous records on the day of the hearing in this case.” He also asserted that the

legal standard is not whether he is the prevailing party but rather whether he is “a plaintiff

who, after filing suit, has obtained from the defendant a significant or material portion of

the public information he or she requested.” See Ark. Code Ann. § 25-19-107(d)(1). The

court did not rule on this motion, and it was deemed denied on 15 August 2024. Martin

timely appealed the circuit court’s order.

I. Failure to Comply on Remand

Martin first argues that the circuit court failed to comply with this court’s instructions

on remand. He contends that the circuit court’s claim that it conducted an in camera review

of the records relevant to his Third Request is “demonstrably false” because Higgins never

provided the circuit court with those records. Martin claims that the only FOIA records

provided to the circuit court were documents in response to his “post-litigation FOIA

request” (the request made three days after this court’s opinion was published). According

to Martin, those documents consist of Higgins’s attorneys’ bills and an additional seven pages

(he does not specify what those seven pages consist of). He contends that those seven pages

are not the records that he sought in the Third Request and not the records that the circuit

court had been ordered to review. Martin also asserts that the court of appeals ordered the

circuit court to review the entire criminal case file, and it had not done so. Notably, Martin

does not argue that the circuit court erred in finding that Higgins correctly withheld the

requested records pursuant to the undisclosed-investigations exemption.

Higgins responds that the circuit court followed this court’s mandate by reviewing

the material relevant to whether he had correctly withheld the requested records pursuant

7 to the undisclosed-investigations exemption and that the documents attached to the motion

to dismiss support the conclusion that there was an ongoing criminal investigation with

respect to records responsive to the Third Request. Higgins explains,

Notes from Appellee’s office with respect to Appellant’s FOIA requests indicate that they were advised by CID not to release the records “due to use in court on another case” and “due to open investigation/case.” An Official Memorandum from Lieutenant Mike Blain to Chief Earnest Whitten also lays out, in detail, the nature of the ongoing criminal investigation and why the records related to the April 17, 2022, alarm call at Jerry’s Deli were relevant to the investigation. According to the memorandum, the details of the call were submitted to the prosecuting attorney’s office, which indicated that it was an ongoing investigation and instructed that it was “not permissible for release until adjudication.”

(Internal record citations omitted.) Higgins asserts that these documents were directly

relevant to the circuit court’s inquiry and, in fact, formed the basis for the decision to

withhold some of the documents relevant to the investigation. Higgins notes that the only

relevant “document” that the circuit court did not review was the bodycam footage, but

the documents produced describe the contents of that footage and explain why it was

relevant to the ongoing investigation.

We hold that the circuit court properly complied with this court’s mandate. First,

contrary to Martin’s assertion, we did not direct the circuit court to review Wardlaw’s entire

criminal case file. Second, Martin has not identified what exactly the court should have

reviewed and does not disagree that the documents attached to the motion to dismiss were

relevant to the analysis of whether the exemption applied. Martin also does not dispute that

the only responsive “document” not reviewed by the circuit court was the bodycam

footage, which the court addressed in its order as follows:

8 The defendant’s motion also states that bodycam video footage was provided during the pendency of the appeal. Such video is not included in the court file, but the court finds that the contents of the footage may have been applicable to the criminal prosecution but they are not to the FOIA review before the court. The existence of bodycam footage is what is relevant.

Martin does not challenge the circuit court’s finding that the footage was not applicable to

the FOIA review. Thus, we hold that there is no reversible error on this point.

It is also worth noting that Martin’s position on appeal is completely inconsistent

with his position below. In his response to Higgins’s motion to dismiss the claim related to

the Third Request, Martin asserted, “The order from the Court of Appeals requiring this

Court to evaluate the exemption for the purpose of providing the records is no longer

apposite as the records, well, have been provided.” In other words, it was no longer

necessary for the circuit court to comply with this court’s mandate. Now, Martin complains

that the circuit court failed to comply with our mandate. The general rule is that a party is

bound by his or her pleadings and the allegations therein and cannot maintain an inconsistent

position on appeal. See Killingsworth v. Dittmar, 2018 Ark. App. 294, 552 S.W.3d 1

(appellant could not argue on appeal that her relocation with the parties’ children did not

constitute a material change of circumstances where her own pleadings indicated that the

relocation did constitute a material change).

II. Attorney’s Fees

Next, Martin argues that the circuit court improperly denied him attorney’s fees.

The decision whether to award attorney’s fees will not be set aside absent an abuse of

discretion by the circuit court. Kitchens v. City of Ft. Smith, 2023 Ark. App. 408, 675 S.W.3d

884. The abuse-of-discretion standard is a high threshold that does not simply require error 9 in the circuit court’s decision but requires that the circuit court act improvidently,

thoughtlessly, or without due consideration. Id.

Martin first asserts that the court erroneously found that he was not the prevailing

party with respect to the First, Second, and Fourth Requests. On the contrary, he argues,

those requests were dismissed because Higgins had provided those records after the lawsuit

was initiated and had produced “voluminous records on the day of the hearing in this case,”

which was twenty-one days after filing the complaint, two months after the First Request

was made, three months after the Second Request was made, and five weeks after the Fourth

Request was made. Martin also contends that whether he was the “prevailing party” is not

the correct legal standard; the standard is whether “a plaintiff who, after filing suit, has

obtained from the defendant a significant or material portion of the public information he

or she requested.” Ark. Code Ann. § 25-19-107(d)(1).

In response, Higgins argues that Martin has failed to show that (1) he obtained a

“significant or material portion of the public information he or she requested” after filing

suit and (2) Higgins’s position was not substantially justified. See id. Higgins notes that

while Martin continues to claim that he prevailed on every cause of action and obtained “a

significant or material portion of the public information he or she requested,” the circuit

court never made that finding. In addition, the record clearly shows that Higgins’s position

in this matter related to the FOIA requests was substantially justified.

Under the plain language of the statute, attorney’s fees shall be assessed against the

defendant (1) when the plaintiff has, after filing suit, obtained from the defendant a

significant or material portion of the public information he or she requested unless (2) the

10 court finds that the position of the defendant was substantially justified. See id. Here, it is

clear that the circuit court used the “prevailing party” standard for awarding attorney’s fees

and not the standard set forth in the statute. And this court will not make those statutory

findings in the first instance. We therefore reverse and remand with instructions for the

circuit court to determine whether attorney’s fees are warranted pursuant to Ark. Code

Ann. § 25-19-107(d).

Affirmed in part; reversed and remanded in part.

TUCKER and THYER, JJ., agree.

Corbitt Law Firm, PLLC, by: Chris P. Corbitt; and Robert Steinbuch, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Megan D. Hargraves and Cara

D. Butler, for appellee.