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ARKANSAS COURT OF APPEALS

DIVISION I 

No. CV-15-520

TIMOTHY HOLLIS 

APPELLANT

V.

FAYETTEVILLE SCHOOL DISTRICT 

NO. 1 OF WASHINGTON COUNTY, 

ARKANSAS; TIM HUDSON; JIM 

HALSELL; BRYN BAGWELL; JUSTIN 

EICHMANN; TRACI FARRAH; 

SUSAN HEIL; STEVE PERCIVAL; 

VICKI THOMAS; and STEVE JACOBY 

APPELLEES

Opinion Delivered March 2, 2016

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. CV-13-956-7] 

HONORABLE DOUG MARTIN, 

JUDGE

REVERSED AND DISMISSED 

RAYMOND R. ABRAMSON, Judge

This case is a companion to Hollis v. Fayetteville School District, 2016 Ark. App. 137

(Hollis III), also decided today. These two appeals arise out of appellant Timothy Hollis’s 

Freedom of Information Act (the FOIA) requests made to appellee Fayetteville School 

District (collectively with its superintendent and individual board members, the district). In 

this case, the circuit court found that Hollis’s FOIA requests were not specific enough to 

allow the district to locate the requested records with reasonable effort. As a result of this 

finding, the circuit court granted the district’s renewed motion for a protective order. This 
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appeal challenges both rulings. We hold that the circuit court lacked jurisdiction when it 

granted the motion for a protective order. Accordingly, we reverse and dismiss. 

I. Background and Procedural History

Hollis’s employment at Fayetteville High School was terminated by the board in 

February 2013. He sought judicial review of the termination pursuant to the Arkansas 

Teacher Fair Dismissal Act (TFDA). The termination was upheld by the circuit court, and 

we affirmed.1 Hollis v. Fayetteville Sch. Dist., 2015 Ark. App. 544, 473 S.W.3d 45 (Hollis I).

On August 22, 2014, after the circuit court had upheld his termination and the record 

had been filed with this court, Hollis propounded some seventeen FOIA requests to the 

district. At the time, Hollis was a candidate for a position on the school board. Specifically, 

the three requests at issue are as follows:

10. Copies of all emails and other communications between the attorneys for 

Fayetteville Public Schools and the financial office, financial officers, treasurer or any 

similar department or employee during the previous one (1) year. 

11. Copies of all emails and other communications between the human 

resources department for Fayetteville Public Schools and the financial office, financial 

officers, treasurer or any similar department or employee during the previous one (1) 

year.

12. Copies of all emails and other communications between Vicki Thomas 

[the district’s former superintendent] and the financial office, financial officers, 

treasurer or any similar department or employee during the previous one (1) year. 

On September 4, 2014, the district responded to some of the requests, but also noted 

it was renewing a request for a protective order with respect to requests numbers 10, 11, 

and 12 that it had filed in Judge Martin’s court. That same day, the district filed a renewed

 

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Circuit Judge Doug Martin presided over the termination case. 
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motion for a protective order under the same docket number as the termination case. The 

district argued that these specific requests were overbroad and unduly burdensome, 

particularly with respect to the request for all emails by or to “the financial office, financial 

officers, treasurer or any similar department or employee.” The district also argued that the 

request for all emails would require the production of hundreds of thousands of emails 

requiring individual review by counsel to determine if any such emails contained

information that would constitute an unwarranted invasion of personal privacy under Ark. 

Code Ann. § 25-19-105(b)(12) (Repl. 2014), or contained protected educational records 

under federal law. The district further argued that request no. 10 also required the disclosure 

of information protected by attorney-client privilege. 

Hollis responded to the renewed motion for a protective order, arguing that the 

FOIA requests at issue were not submitted until over four months after Judge Martin had 

upheld his termination and, therefore, were not a collateral matter over which the court 

retained jurisdiction. He further asserted that the FOIA did not provide exceptions for 

information protected by the attorney-client privilege or for requests that the governmental 

entity deemed “overbroad and unduly burdensome.” Hollis asked that the motion be 

denied.

On September 19, 2014, Hollis filed suit in Circuit Judge Cristi Beaumont’s court 

(the FOIA case) against the district to force compliance with his FOIA requests. Hollis 

asserted that the district’s earlier, original request for a protective order was denied by Judge 

Martin and because the district did not appeal that ruling, that order was now final. Hollis 

also requested a hearing. 
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On September 26, 2014, the district filed a motion to dismiss the FOIA complaint 

pursuant to Ark. R. Civ. P. 12(b)(8) on the basis that the precise issues were also pending 

in Judge Martin’s court. The district repeated its arguments made in requesting the 

protective order from Judge Martin. The district also argued that the documents subject to 

disclosure under the FOIA could still be exempt if protected by order or rule of court. 

In his response to the motion to dismiss the FOIA case, Hollis argued that Judge 

Martin did not retain jurisdiction over the FOIA requests because the requests were not 

collateral to the matters relating to his dismissal. He also argued that the FOIA exemption 

for documents protected by order or rule of court does not prevent disclosure of those 

documents to a party to the suit, only to the public. He further asserted that the FOIA did 

not provide exceptions for information protected by the attorney-client privilege or for 

requests that the governmental entity deemed “overbroad and unduly burdensome.”

By letter dated December 1, 2014, Hollis’s attorney requested a hearing from Judge 

Beaumont within seven days as provided in Ark. Code Ann. § 25-19-107.

On December 4, 2014, Judge Martin held a conference call and requested the parties 

to brief the issue of whether the district’s renewed request for a protective order was 

“collateral” to the issues in Hollis I such that the court could exercise jurisdiction. The parties 

filed their respective briefs on December 15, 2014. Judge Martin issued a letter opinion on 

December 18, 2014, finding that he had jurisdiction to rule on the district’s renewed 

motion.
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Also on December 18, 2014, Judge Beaumont dismissed Hollis’s complaint because 

the issue of the release of the same information was pending in Judge Martin’s court prior 

to Hollis filing his complaint.

A hearing on the district’s renewed motion for a protective order was held before 

Judge Martin on January 28, 2015, and the court took the matter under advisement. The 

court issued its letter opinion on February 3, 2015. The court first rejected the district’s 

claim of exemption for information protected from disclosure by order or rule of court 

because there was no prior court order or rule entered by it. The court also rejected the 

claimed exemption for material covered by the attorney-client privilege, noting that our 

supreme court had ruled that neither attorney-client privilege nor attorney work product 

created exemptions to the FOIA. Judge Martin noted that, contrary to the district’s 

argument, there was no relevancy requirement in the FOIA. Although the court found that 

the district’s claim that Hollis’s requests were overbroad and unduly burdensome was not a 

proper response to Hollis, the court also found that the district’s request that Hollis narrow 

his requests was a proper response under the FOIA. According to the circuit court, the issue 

then became whether Hollis’s requests were “sufficiently specific to enable the custodian to 

locate the records with reasonable effort.” The court found that these requests were not 

sufficiently specific to enable the custodian to locate the records with reasonable effort, as 

required by Ark. Code Ann. § 25-19-105(a)(2)(C). Specifically, the court found that the 

“the financial office, financial officers, treasurer or any similar department or employee” 

language in the requests precluded them from being sufficiently specific. Because Hollis 

refused the district’s request to narrow the nonspecific FOIA requests, Judge Martin
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concluded that the district had properly responded to Hollis’s FOIA requests and that the 

renewed motion for protective order should be granted. This appeal followed. 

II. Standard of Review

In a FOIA case, the standard of review is whether the circuit court’s findings were 

clearly erroneous or clearly against the preponderance of the evidence. Pulaski Cty. v. Ark. 

Democrat-Gazette, Inc., 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007). The issue of the 

applicability of the FOIA is a question of statutory interpretation, which we review de novo, 

because it is for this court to determine the meaning of a statute. Harrill & Sutter, PLLC v. 

Farrar, 2012 Ark. 180, 402 S.W.3d 511. 

III. Discussion

We start with a brief discussion of the FOIA. The FOIA provides that an Arkansas 

citizen may make a request to the custodian of public records to “inspect, copy, or receive 

copies of public records.” Ark. Code Ann. § 25-19-105(a)(2)(A). For a record to be subject 

to the FOIA and available to the public, it must (1) be possessed by an entity covered by 

the Act, (2) fall within the Act’s definition of a public record, and (3) not be exempted by 

the Act or other statutes. Daugherty v. Jacksonville Police Dep’t, 2012 Ark. 264, 411 S.W.3d 

196. If the citizen’s request for the records is denied, he or she may bring suit in circuit 

court to challenge the denial. Ark. Code Ann. § 25-19-107(a). Here, there is no dispute 

that the requested records are public records under the FOIA. Although the district argued 

that some of the records were protected from disclosure by attorney-client privilege or other 

exceptions, Judge Martin rejected those arguments, and the district did not cross-appeal. 
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In the circuit court case that spawned both this appeal (Hollis II) and Hollis I, the 

district filed a renewed motion for protective order under the same case number, and before 

the same circuit judge (Judge Martin), while the Hollis I appeal was pending. In Hollis I, this

court addressed whether the district violated the TFDA when it terminated Hollis’s teacher 

contract for insubordinate conduct. The motion that the district filed while the appeal was 

pending in Hollis I was fueled by Hollis’s letter requests for information under the FOIA, 

and it was based on Arkansas Rule of Civil Procedure 26(c). 

The problem is that our supreme court has embraced the view that the Freedom of

Information Act and the discovery rules under the Arkansas Rules of Civil Procedure

operate independently. See Berry v. Saline Mem’l Hosp., 322 Ark. 182, 185, 907 S.W.2d 736, 

738 (1995) (“The FOIA at times provides greater disclosure than do the discovery

procedures afforded by the Arkansas Rules of Civil Procedure.”). The FOIA, in other 

words, when properly invoked, provides an avenue for obtaining information that is separate 

from the rules of civil procedure. See City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d

275 (1990) (protective order obtained under discovery rules does not prevent availability of

information under the FOIA). The essential legal question presented in this appeal is 

whether the district commenced a FOIA action by filing a “renewed motion for protective 

order.” The answer is no for two reasons. First, the district is the custodian of the records 

sought. The district’s second attempt to obtain a protective order did not formally

commence a FOIA case because, by statute, only an Arkansas citizen may request to inspect 

or copy public records or seek review of the denial of such a request. Ark. Code Ann. §§ 

25-19-105(a)(1)(A) & 25-19-107(a).
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Second, because Hollis I was on appeal to this court when the unauthorized FOIA

Rule 26 motion was litigated, we hold that the circuit court lacked jurisdiction to enter the 

protective order. We therefore reverse and dismiss this appeal without deciding the merits 

of the circuit court’s decision. Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007). The 

parties’ dispute over access to information under Arkansas’s Freedom of Information Act 

may, however, be fully litigated under the law before Judge Beaumont for the reasons stated 

in the companion appeal to this case. See Hollis III, supra. 

Reversed and dismissed. 

HARRISON and GLOVER, JJ., agree. 

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Bryce G. Crawford, for 

appellant. 

Friday, Eldredge & Clark, LLP, by: Christopher Heller and R. Christopher Lawson, for 

appellees.