Behind the Lines: Two Trials, One Fantasy

Comms before compliance.

That’s the operating principle at the Arkansas Attorney General’s Office. I’ve seen it up close. It doesn’t matter what the law says — it’s about the spin.

The latest exhibit? Attorney General Tim Griffin’s motion to dismiss in our Freedom of Information Act lawsuit against the AG and Arkansas Children’s Hospital over withheld documents related to the AG’s award of $55 million in opioid and vaping settlement funds. If you want to understand how a court filing gets weaponized for petty grievance, this is the place.

The defense attorneys in the Capital City Tree Service lawsuit said it during closing arguments, and that seems to be the case in the FOIA suit. The AG is fighting two cases: what’s in the Tracking Arkansas co-founder Janie Ginocchio’s FOIA petition and the fantasy one the AG’s office operates from. The actual question before the court is remarkably uncomplicated: Did the AG comply with FOIA when he withheld the requested records?

Before the AG gets to any legal argument in the motion to dismiss, he spends a paragraph telling the court that Ginocchio is “a blogger whose primary focus is Attorney General Tim Griffin.” He mentions the Tracking Arkansas Substack and our 12-part series on The Arkansas Machine. He mentions ethics complaints filed against him — all dismissed, he’s sure to add. Nothing relevant to whether the FOIA was violated. The case law is clear: trial courts can only look at the allegations actually in the complaint when deciding on a motion to dismiss.

This is the pattern: ad hominem before argument. Character assassination before legal analysis. Personal attacks before compliance.

It's the same thing his own deputy called “comms before substance” when the governor's office pushed unconfirmed China-ties claims — the AG's office knows exactly what this looks like when someone else does it. Or when he labeled Capital City price-gouging predators in a press release, only to have the jury find that he didn't meet his burden of proof.

The AG’s legal arguments are so disconnected from reality because he’s operating under a single principle: WIIFM (What’s In It For Me?).

There’s the text of the FOIA. There’s the case law. And then there’s Griffin’s interpretation, which is whatever serves his narrative in the moment.

The motion claims there’s “no text in the FOIA that requires the Attorney General to identify the records being withheld under an exemption” or the basis for the exemption. That’s convenient because that’s not what the complaint alleges. The complaint alleges he didn’t meet his burden under Orsini v State to prove the exemption applied because he didn’t identify which documents were withheld and on what basis.

While the motion to dismiss accuses Ginocchio of using “fabricated legal theories” and “misstatements of law,” it also claims that under Orsini, the burden of proving exemptions “may arise during the FOIA appeal — not at the time of the response.” Translation: We don’t have to justify our withholding until you force us to, and we’d like to get this case dismissed before that happens.

The problem is, there’s no “may arise” in Orsini. The Supreme Court was clear: “The burden of proving exemptions to the FOIA rests with the keeper of the requested records claiming the exemption.”

That's not a minor procedural disagreement. It reverses who bears the burden under Orsini. The burden rests with the custodian. The exemptions are to be narrowly construed. You don’t get to hide behind a motion to dismiss to avoid the obligation. This lawsuit is the FOIA appeal his own argument mentions.

In June 2007, Griffin stood at the Clinton School of Public Service and tearfully told the audience that public service is “not worth it” weeks after he resigned as an interim Assistant U.S. Attorney amid vote-caging revelations and public scrutiny about the circumstances surrounding his appointment to the office.

Public service isn't supposed to be about what's in it for the person holding the office. It's supposed to be about what the person holding the office owes the public.

That's the part Griffin seems to have forgotten.

The vote caging. The selective enforcement. The lawfare designed to exhaust opponents rather than achieve justice. Different episodes, same underlying question: What's in it for him?

When citizens challenge government officials, the response should be to demonstrate compliance with the law, not to litigate the citizen’s character. When the government’s response to accountability is communications warfare, citizens have to create their own mechanisms for accountability.

Tracking Arkansas is what happens when the people adapt to a broken system. You can’t trust the press releases, you can’t trust the filings, you can’t trust the ethics commission to enforce the rules. So you build something new to try and hold elected officials accountable. You watch. You observe. You listen. And then you publish.

Ginocchio has been doing the work the establishment won’t do. The AG’s personal attacks on her journalism are exactly why we had to weaponize transparency. Because when the system is captured by public officials, the only way to hold them accountable is to make every document, every evasion, every contradiction visible.

The motion to dismiss is a joke. But he needs to win in the court of public opinion, or at least what he thinks is the court of public opinion. The one where he controls the narrative. The one where “comms before compliance” works.

It’s not going to work this time.

The people are watching. And we’ve got receipts.

We’ll publish what’s in our response to the motion to dismiss as soon as it’s filed.

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