While I have a fairly tolerant constitution, a few actions by government officials put me into a state of emesis: (1) rank hucksterism; (2) patently ridiculous arguments made by public institutions of higher learning, and (3) transparent (pun intended) shams to avoid openness. And as a co-author of the treatise on the Arkansas Freedom of Information Act (FOIA), I'm all but delirious when government officials in an institution of higher education and their cronies strike the trifecta of malaise by employing flimsy arguments and pretense to closet government action.
Arkansas State University and its Red Wolves Foundation managed to do so during their recent maladroit handling of FOIA requests from the Arkansas Democrat-Gazette.
The Democrat-Gazette reported last weekend that ASU and its foundation refused to comply with FOIA requests by employing arguments that would have embarrassed a spokesman for the Soviet Politburo. "No, that shrubbery in the official photograph was always there; we haven't erased anyone from history."
Specifically, the Democrat-Gazette reports that the foundation's executive director, Adam Haukap, is paid $85,000 by the state, the foundation's offices are on state property, the foundation doesn't pay rent, and the foundation has no lease agreement to use that publicly owned space. Yet the university and the foundation (well, same thing, really) claim that the FOIA doesn't apply to foundation activities.
They're wrong. The foundation under these circumstances doesn't only walk like a duck, it's waddling around with a DNA test stapled to its head confirming it's a duck.
The Democrat-Gazette reporting further indicates that employees paid by the state engage in fundraising and then turn that public money over to the foundation. That would, in fact, make all activity related to and resulting from that funding subject to the FOIA. To be clear: Money that is either collected by public employees, deposited even momentarily in public accounts, or directed to a public account (like a check made out to "ASU") is all public money, regardless of where it winds up. As such, its use is subject to FOIA oversight. And look out for arguments that seek to discount these dispositive factors for claims of subjective donor intent. That's three-card Monty logic. Public money is, well, public. FOIA attaches to it immediately regardless of how questionable the final destination--indeed, morally, this is even more compelling for those funds ultimately landing in eyebrow-raising accounts.
Moreover, questions abound. How can public employees raise money for a private organization? Are they telling donors that their money is being turned over to a private entity? How much money given to a public entity is redirected by public employees to a private organization? How much of the money coming in to the government entity that is then diverted to a private organization goes into paying the salaries of employees and expenses of the private business? What salaries are these private employees earning and what percentage is subsidized with public funds?
Having asserted that the FOIA doesn't apply to the foundation, ASU then says that any records of the foundation in the university's possession are exempt under the "competitive harm" carve-out in the FOIA. What competition is there for ASU's foundation? Is there some parallel-universe university foundation on the precipice of springing up like a mushroom on state property--rent-free--with state-funded employees, that will compete against the existing one? This invocation of the FOIA exemption is gibberish.
Indeed, years ago, the Arkansas Supreme Court made clear that it would not allow the competitive-harm exemption to become a grab-bag of excuses for government cronies seeking to dodge public oversight. And as we state in our Arkansas Supreme Court-cited treatise on the FOIA, for the "required showing of 'substantial competitive harm,' conclusory or generalized allegations will not suffice. Rather, 'specific factual or evidentiary material must be presented.'" This presentation is compelled upon the initiation of a lawsuit. And the FOIA allows for two kinds of actions: one from the requestor and another by a prosecutor against the custodian of records for negligent failure to comply with the FOIA. Both seem apt here.
Unfortunately, some government actors are still flagrantly skirting transparency laws; they must learn that the FOIA is a core obligation of all public jobs--irrespective of the public entity for which they work--and for which they are handsomely paid with the hard-earned dollars of Arkansas taxpayers. If these public employees don't like this required term of their employment, they're free to work in the private sector on somebody else's nickel. In the meantime, I'll be sure to continue to remind them what they sign up for every two weeks when they take their government-guaranteed checks to the bank.
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Robert Steinbuch, professor of law at the Bowen Law School, is co-author of The Arkansas Freedom of Information Act, now in its sixth edition. His opinions are his own.
Editorial on 04/19/2018