LITTLE ROCK — The state Supreme Court on Thursday unanimously overturned a circuit court’s ruling that the Freedom of Information Act is unconstitutional because it is too vague and overbroad.
In the opinion, Chief Justice Jim Hannah wrote that questions that arose from the Fort Smith case, including a request for a more concise definition of “meeting,” were not specific to the case and not up to the judiciary to decide.
Hannah wrote that “it is evident to this court that appellees have an argument with the legislature, but not one that amounts yet to a case or controversy that should be decided by a court.”
The Freedom of Information Act does not attempt to address specific scenarios, and it is the task of the courts to “give effect to the intent of the legislature,” Hannah wrote in the 20-page opinion.
The case dates to 2009 when Fort Smith’s then-City Administrator Dennis Kelly, who served in the position from October 2008 to November 2010, presented a memorandum to city board members before a scheduled meeting that outlined a proposed ordinance to allow the Fort Smith city administrator to hire and fire specified departments heads.
Kelly delivered the memorandum to the board members, and before the meeting, two expressed support for the measure and two stated they would not support the measure.
The memorandum was discussed at a public study session on May 12, 2009, but there was no motion to place the ordinance on the agenda for the regular board meeting.
Joey McCutchen, a Fort Smith lawyer, filed a lawsuit against the city, alleging that Kelly’s one-on-one meetings with board members violated the open-meeting provision of the Freedom of Information Act.
Sebastian County Circuit Judge James Cox dismissed the lawsuit in October 2011 and ruled in favor of the city, stating that the Freedom of Information Act violated constitutional rights to free speech and due process because it is overbroad and vague.
Cox also ruled that the Freedom of Information Act’s criminal provision was vague and also unconstitutional.
The circuit court’s ruling included a conclusion that “there was a genuine dispute and judicial controversy among the parties as to the meaning and proper application of the FOIA” in regard to informational exchanges, including “meeting-agenda packages, telephone conversations, e-mail communications, citizens’ participation, and ‘straw man’ discussions.”
McCutchen appealed the circuit court’s ruling, and the case went to the Supreme Court.
In Thursday’s ruling, Hannah agreed with the lower court’s ruling that Kelly’s actions did not violate the Freedom of Information Act, and the chief justice drew a distinction between the case and previous rulings where a city administrator had met with board members for the purpose of determining whether the board would approve of the purchase of land.
Hannah wrote that the memorandum Kelly presented to the board members provided background information for the forthcoming study session, and Kelly did not solicit responses, leading to no violation of the Freedom of Information Act.
But the court reversed the circuit court’s ruling that the Freedom of Information Act and its criminal provision are unconstitutional by being vague, finding that there was no actual controversy presented by the case and that it was up to the Legislature whether to specify the conditions of the law.
“We have long held that courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules of future conduct,” Hannah wrote.
Arkansas, Pages 11 on 12/07/2012