Ark. Supreme Court reverses ruling on FOI law

Friday, December 7, 2012

LITTLE ROCK, Ark. — The Arkansas Supreme Court yesterday tossed out part of a lower court ruling that declared the state’s Freedom of Information Act unconstitutional but let stand a part of the opinion that lets city administrators meet in private with city council members individually.

Sebastian County Circuit Judge James Cox ruled last year that the law was too vague for the criminal penalties to be fair after a Fort Smith attorney alleged in a lawsuit that a city administrator was illegally having meetings with individual members of the city council.

The high court’s ruling upheld the criminal penalties, and the opinion written by Chief Justice Jim Hannah said the Legislature could change the law, but judges couldn’t.

Attorney Joey McCutchen, a former school board member in Fort Smith who filed the initial lawsuit against the city and several officials, said he was unhappy that any portion of Cox’s ruling was upheld.

“I’m disappointed with it … it looks like the city administrator and board of directors can basically do anything short of polling, asking how are you going to vote,” McCutchen said.

McCutchen said the public would have to take the word of elected officials and administrators regarding what happens when they get together.

“If it was an open meeting, we wouldn’t have to be taking their word for it,” McCutchen said.

McCutchen sued after then-Fort Smith City Administrator Dennis Kelly met individually with some council members about a proposal he supported that would have given him the power to fire workers. That responsibility was held by the city board.

Kelly’s employment ended in 2010. Present City Administrator Ray Gosack he wished the high court had upheld the ruling that the criminal penalties were unconstitutional. Gosack said the Legislature hadn’t provided a legal definition of what constitutes a “meeting.”

“Given the vagueness of what is or isn’t a violation, it creates a lot of uncertainty for public officials and we’ve seen a clear example of that in this case filed by a citizen who thought there was a violation,” Gosack said. “In this case there wasn’t a violation but what it points to is the need for a definition of what is or isn’t a meeting.”

The high court ruled that McCutchen’s lawsuit didn’t give the proper forum for Cox to address the constitutionality of the criminal penalties in the FOIA.

The Arkansas Press Association had filed a friend-of-the-court brief asking that the lower court decision be struck down.

“We’re pleased that the Supreme Court determined that criminal penalties were constitutional,” said Tres Williams, spokesman for the association. “We’re disappointed in the decision to interpret actions of certain members of the governing body to not constitute a meeting.”

Williams said “it remains to be determined” whether the organization would ask legislators to change the law.

McCutchen said he wouldn’t mind seeing the Legislature take a crack at it.

“Maybe the Legislature does need to take a look at this. We’re clearly living in a different day than in the 1960s. E-mail, text messaging, you name it,” he said.

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