Is LR School Board wise?

LITTLE ROCK — The Little Rock School Board is flirting with trouble. I mention this lest other school boards do the same.

A word to the wise et cetera.

Recently, state Sen. Irma Hunter Brown of Little Rock put a very interesting question to Attorney General Dustin McDaniel: Has this newspaper complied with the Arkansas Freedom of Information Act by requesting ongoing daily access to the electronic communications engaged in by board members on a regular basis?

How novel, I thought upon learning what Brown had done. Wouldn't it have been more appropriate to ask whether the public entity involved had to comply with the request? It immediately brought to mind the time Little Rock School District officials sued me to keep me from asking for a list of superintendent applicants. They lost, of course, but I have always regretted that the newspaper's attorney accepted service of the lawsuit before I could countersue them for attempted obstruction of my First Amendment rights to speak freely.

But that's ancient history. It's much more interesting to consider Brown's question, the specific wording of which was "Does the newspaper's request under the FOIA for e-mails which may not yet exist at the time of the request comply with the FOIA?"

The short answer was no. But bless his little pea-pickin' heart, McDaniel didn't stop there.

As it happens, this newspaper got wind of Brown's request for an AG's opinion in this matter and fired off a little request of its own: Examine an enclosed sample-merely a sample, mind you-of the e-mail exchanged between and among board members and district employees on a regular basis. E-mail that the district, according to our letter, routinely routes through its attorneys, often causing delaysthat exceed the time limit required by the FOIA for releasing public documents.

"Please note that we have not asked the school district to compile a record," state editor Danny Shameer wrote. "Rather, we have simply asked for what has become a regular stream of e-mails that deal with district operations and e-mails between school board members over matters that used to be discussed during public meetings." The emphasis, please note, is mine.

Shameer continued: "Also, some email exchanges are on matters that become action items for votes taken during public meetings. The e-mails from the superintendent, as well as among board members, have become the equivalent of electronic meetings."

Meetings of which the public is not informed beforehand, I might add. The FOIA and case law have had a few things to say about that, I can tell ya.

"If the board chooses to hold 'electronic' meetings, we feel we have an ongoing right to the e-mail discussions between board members," Shameer wrote.

I'm not going to waste today's limited space quoting the text of the applicable FOIA provisions as I have done so many times before. Suffice it to say that communications between or among members of a public board about matters on which they may be called to act as a public board are prohibited by the act. Furthermore, the public must be notified in advance of any meetings between or among board members.

In his response to Brown's request, McDaniel correctly noted that "the FOIA does not contemplate or authorize 'continuing' or 'ongoing' requests for records that are not in existence at the time the request is made." He went on to discuss at great length the finer points of FOIA statutes and case law in Arkansas and elsewhere.

Then came the good stuff, the "word to the wise" stuff.

"I must," he wrote, "address a final point, however, in light of your question's factual predicate which involves e-mail exchanges to, from or between members of a 'governing body' that is subject to the open-meetings provisions of the FOIA. I am in receipt of information from representatives of the newspaper. . . ." McDaniel pointed out that previous attorneys general had relied on case law governing telephone communications to opine that, in the words of one, "a violation of the FOIA's open-meeting requirement could occur under circumstances involving e-mail communications" and that, again quoting, "there will likely be risks whenever e-mail is used to disseminate information to the members of a governing body concerning the body's official business. Accordingly, I must reiterate my immediate predecessor's caution against any discussion of pending business outside a public-meeting context." No, McDaniel didn't take the newspaper's side. He didn't do the school board any favors, either, because he suggested that parties who feel aggrieved by public officials "pursue applicable remedies to force," i.e. sue, those officials to rectify that grievance. Why must it come to that? Why must public officials be ordered by a judge to do their sworn duty, to do right by the public they ostensibly serve?

———◊———

Associate Editor Meredith Oakley is editor of the Voices page.