in this case i'll begin with an argument that is unique to the county defendant in this case and that is that because it is disclosure was made last the respect to the county because they concede in their complaint and also on page twenty six of their brief on appeal that officer hoyt released the counties report redacted report a day after the city released the city released by e mail and the county released by snail mail by physical mail there's no allegation of publication of the county's report but the argument against the county has morphed into what your honor asserted there which is that there's a reference to somebody being five years old the name is redacted of course all the names are redacted in both reports  but i think that speaks to the reasonable notice component of qualified immunity is there a case out there that says that you're entitled to privacy even where your name is redacted privacy for them as the dogs even though some of the names of have changed as they married well i mean it is all about reasonable notice to the public official here there are there is no supreme court case even recognizing right to what's been referred to in this case as informational privacy as opposed to the other components of privacy that have been recognized by the court that's really important here because privacy itself is a recognized right not a textual right you can't go to the constitution like you can with the fourth eighth the first amendment and read about the right of privacy because there's there's no language in the constitution that effect that was famously located in the penumbra and so we've got to go from the cases the supreme court in all of these cases where it's dealt with this issue has assumed the right and then found no violation even where the right is assumed to have any of those cases facts like we have in this case not precisely like this the same goes for this court this court has assumed the right is referred to it as a notion of a substantive due process rights informational privacy and even where that that ri photographs of of parents of a child's corpse in one case a social security number which we don't in the courts case that was a public viewing of that was already disclose well there's also these social security number case where you know i think most folks would say so security numbers ought to be proud of this court held the opposite that there is even assuming a privacy rights that matter that state law where any disclosure under the foia has ever been met with civil or criminal liability all the liability under they have why a flows in the other direction but when you don't there's a tension in in arkansas law between therefore and arrest there was never an arrest made here there were never any criminal proceedings that statute just simply doesn't apply the child not treatment axim really doesn't name county sheriff's offices as an organization under that act  generally agencies that are going to be of forcing well the law the apple e side to an arkansas attorney general opinion i believe arose after this that says that indicates that maybe counties are one of those things but even if they were of the department of human services department of state police or other entity authorized under this subchapter shall not be subject to disclosure there's no regarding clause in the act i don't describe what that our records are we to read this statute to mean that all state police records are exempt from the f a y it's a nonsensical reading and so if if a non lawyer like my client reads this statute there's no way he could come to the conclusion that that ex one record instead of another or all of them is he free to ignore the freedom the formation act i think not i think that's i think that's a decision made with legal counsel direction or guy there's no allegation of that in the complain the and i would add that importantly on the statutory questions the arkansas general assembly after all this happened and was public amended the statutes to address this specific circumstance now why would they do that if it was so clear i think that is the ultimate argument that the apple is never responded to the general assembly need not them in these statutes if they were so clear  that qualified immunity should be afforded to both kelly and kate in this case because they could not have been put on notice that the redaction and the release of a police report pursuant to a greater freedom of information act request would violate a person's substantive due process right of the fourteenth amendment argument is that the district court in this case applied and in correct broadview analysis of what constitutes clearly established law in this district in that the district court cannot of found a robust consensus of cases of persuasive authority established with the remedy in b to send it back  the court to do a proper analysis as opposed to the broad view analysis and analysis more in line with supreme court precedent that that you need pretty close facts to in order to have a  or even though they've never found a violation it seems to me that case law describing the informational right to privacy places that right you know very very small blocks very very narrow states that the information must be to further some specific state interest there is no discussion of what that language means but if you follow those cases back if you look at davis the third that was cited on the now the ninth circuit and us next and other other cases like that there 's a balancing test that occurs because this is a unique case where you have the freedom of information act which is a penal act there are criminal penalties attached to it for noncompliance and this is so this is a case where you have an official is not going on a radio program not in a press conference as a black bloc the rahbar in the sixth circuit but is acting pursuant to a freedom of information act requests that has criminal penalties and there's also specific provision in the freedom of information act that says it's not you cannot deny your freedom of information act request due to a commingling of information and further that if you can that sleeps on the internet on a fan page for the doctors looked at the length of the redactions and determined what the name what guess what the names might be there are no allegations that that information was ever confirmed by the city of springdale or by washington county nor that that information included anybody's name anybody's age at their any of their own and similar foia requests for information like this before that had that those cases have not occurred and i do see that i'm going into my rebuttal time here i don't know if they're in for the question will appeal and if you do that back to our eighth circuit gays law why wasn't you on citing and again you have this is all done pursuant to a freedom of information act request and so that balance between the government interesting robert interest well are you making a good faith reliance knowing the statute permits or requires us constitutional right and your honor i in just a second will get to the clearly established but i want to make clear the difference between the violation and the clearly established because ripley throughout the city appellant and county  compilation of the violation of a right and and whether it was clearly established and so i want to clearly delineate in eagle this court held that a violation of the constitutional right to privacy require disclosure constituting either a shocking degradation or greed just humiliation or a flagrant breach of confidentiality that was instrumental in obtaining that private information there is most certainly a privacy right that this court has recognized that the supreme court has recognized in the eighth circuit this is what we look at when we're analyzing that privacy right now in order to determine whether that right is clearly  perceived fuzziness in that there aren't any facts that have that or any other decision that are quite so egregious however the law is absolutely clear that there does not need to be a specific case in point for the law to be clearly a stablished that's why we have this reasonable officer standard in our case what we're looking at is not just some random patrolmen these are the officers of our studying county who are charged with a failing freedom of information act requests and when there are statutes that absolutely are on point one of them titled non disclosure of information about victims when you're charged with making the disclosures and applying the exemptions that the general assembly has passed and is the law then a reasonable officer would know that you cannot disclose information about sexual assault victims the record showing that they even considered it before but immediately after like the next day the city tried to submit a better redacted report because they received  we believe the of course this is a motion to dismiss we haven't done discovery but backlash online about what they had done so they went to da chess the municipal league council to see if it was ok up a case i am getting information pursuant to the freedom of information information act all the time so that before i file my complaint i have you know well pled allegations and numerous times have i being granted an extension when a county or a city or whatever the entity is reaches out and says we're compiling it we acknowledge your request these you know these are the reasons why we're having seen in discovery why and what their motives were however it is absolutely clear that this court standard is a shocking degradation or greed just humiliation in the district court was absolutely degradation or greed just humiliation this test in equal and alexander v pepper requires one of two things actually the but both apply here the second one we haven't talked about so much is the flagrant breach of confidentiality and as alleged in the complaint in numerous paragraphs throughout the thirty nine page complaint and i can cite this specific bear paragraph or if you want but it was alleged through out the complaint that the information was absolutely to be to remain confidential the alleged abuse happened in two thousand and two in two thousand and three at that time to apple lee's nor their parents  went to any agencies to report anything they for whatever reason kept it confidential in two thousand and six the way the police department found out about it is that there was an arkansas state police child abuse hotline anonymous tip so the police began to investigate they took these minor children to the children's safety center in springdale which is a safe space where children who were victims of sexual assault can talk to investigators and they were promised that their statements would remain confidential this is two thousand and six there were no charges filed against the perpetrator due to the statute of limitations which only compounds the thought that this is going to remain confidential because it's not becoming part of the public record even indirectly and then the disclosures that we're talking about it's nearly ten years after that so there are so many different compounding layers here of this expectation of confidentiality and the eighth circuit in equal has specifically said when we're looking at this this test in the standard we're looking at whether there was a legitimate expectation of confidentiality so all of those facts that i stated to you as to confidentiality create a quite legitimate expectation of confidentiality and that's opinion which is document nine of the appendix specifically on page fifteen the district court explained but it's effectively that the united states supreme court and hope the pollster in two thousand and two  refined its analysis from meeting specific cases on point to instead looking at whether a reasonable officer knew that the conduct violated the right and actually ruled on this and so  the standard that was applied by the district court is absolutely step by step in line with the way the eighth circuit has looked at these issues and the reason that city and county appellants don't focus in their their br even an argument on what the standard it is and how to follow it is because it's absolutely awful for them this case clearly is what this test into the pates it doesn't was clearly prohibited the disclosure would have been precisely your honor especially because the officers were talking about here are the springdale chief of police the springdale city attorney and an office there in the washington county sheriff's department is a reasonable police officer and required to possess i think it's different depending on the duties of the police officer that you're talking about so like a fourth amendment context you're going to like and this that expecting too much of officers in a reasonable room to put them on notice that what we are doing here violate it is absolutely not too much especially as i said but as i think is really important when these are the people whose duties are to decide what the exemptions are and we have two statutes and it's not a new thing that the law protects sex assault victims and minors in a different way than it does state offenders that is a huge distinguishing factor in a lot of the cases that are cited that are relevant here and that  offender registries and there are mug shots those are embarrassing and humiliating but that is absolutely absurd for a lack of a better word because these are offenders more than that they're adults and it's part of the public record and as the chief judge mentioned when speaking with city opponents attorneys a few moments ago there is a big difference in this case law circuit case involved a criminal history report both of those things have to do with public records and have to do with offenders which is completely different the statutes here are twelve eighteen one zero four eight and sixty nine eleven zero four b and the counsel for county appellate said that the child maltreatment act which is twelve eighteen want to for a is just really unclear and actually read it to you but you honor the act is called the child maltreatment act and it specifically says that any data records report documents created collected or compiled on behalf of v h s the state police or any other entity performing investigations or services to children individuals or families shall not be subject to disclosure that is absolutely clear by quiesced statu hundred ninety eleven zero four be titled nondisclosure of information about victims specifically states that the information that was disclosed in these very poorly redacted reports it cannot be disclosed about victims of sexual assault so while the minors names may have been read acted it says their parents are michelle and jim bob duggar has their addresses it has very crude details of the assault such that when they were published there was a large warning at the top warning graphic depends that the reader would be aware and these were children as your honor thank you your honor that will mean to your specific case about whether the statute in question could form the contours the counsel for the aptly relied upon eagle versus morgan which states of the in that case there's language from this court the constitution doesn't provide a remedy for every wrong but the state also the state statutes fall fall short of the kind of proof necessary to establish a proxy ride in that direction also i think has been given to  immediate response three days if the if you can certify that the record is and is an active storage sometimes counsel will give you leeway if you opposing counsel you contact them and ask the question extension the parties