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The endless struggle to demand transparency from governmental bodies that receive tax monies has featured scofflaws the likes of police departments, city councils, school boards, county governments and fire departments.

While I concede Freedom of Information Act matters aren't the most compelling to write about, the issues in this too-often-closed society we've created are more important than ever for a free press to examine.

Now the North Arkansas Regional Medical Center in Harrison finds itself in a lawsuit, asked to produce documents related to its operation and the public monies it receives.

The FOIA-relentless Fort Smith attorney Joey McCutchen and his law partner Chip Sexton have sued to gain access to the center's documents related to minutes of the medical center's board meetings since Jan. 1, 2017; the center's bylaws and documents related to state and federal grants it has received since Jan. 1, 2015; and copies of grant applications submitted by the center to the Arkansas Inpatient Quality Incentive program since Jan. 1, 2015.

Sexton explained that the FOI law has a three-prong test to determine whether its requirements apply to a nongovernmental entity such as a hospital or medical center. First, does it receive public funds? Second, does it engage in activities of public concern? Lastly, does it carry on work intertwined with that of governmental bodies?

Sexton said the medical center won't comply, basically claiming it isn't subject to FOIA because the lawsuit can't show it meets the three-prong test, and government grants and bond monies are not considered public funds.

I'll pause here to say I've always thought this center did receive public funds in various forms and it is, indeed, intertwined with its landlord, Boone County government, sort of like a bowl of spaghetti.

"In Arkansas, to file a lawsuit (complaint), you must allege or plead facts and not just legal conclusions," Sexton continued. "North Arkansas Regional Medical Center argued we didn't plead facts concerning the elements of it receiving public funds and intertwining with government. While we had indeed pled both of those issues, we nonetheless filed an amended complaint to clearly show grants and bond monies (all public) had been delivered to NARMC, in addition to over $8 million in net receivables in 1997. The parties are also arguing over two inconsistent attorney general opinions and two state Supreme Court decisions on issues raised in the suit that may or may not be relevant."

Among facts in the lawsuit, the plaintiffs contend the medical center has received the following public monies since 1999: $10 million in construction bonds plus $25 million in bonds issued by Boone County, a combined $15 million in refinancing bonds issued by the county, $34,000 in state grants, a $1.8 million federal grant for medical charting software, a federal grant of $1.3 million in "meaningful use money" for technology, and a state award of $69,350 for an inpatient quality incentive program.

On the matter of whether the medical center is, in fact, intertwined with government, the lawsuit spells out multiple connecting links.

They include the fact that Boone County has the ability, subject to consulting with the center, to erect additional facilities upon the premises that the county leases to it for $25 a year. The county requires the center maintain at least historical dollar levels of charity care subject to the determination of the center. The county must be advised of any nominee to the center's board of directors and the Boone County Quorum Court shall either approve or reject that nomination. All directors must also be county residents. The center must provide quarterly reports which provide a summary report of operations of the hospital and concerning any aspect of the management and operation of the hospital that may be required by the county judge or Quorum Court.

The alleged intertwining continues: All meetings of the North Arkansas Regional Medical Center, with the exception of personnel, credentialing or peer review matters, must be open. The county authorized the issuance of bonds for revenue in 2010, as well as for other bonds that benefit the center. And finally, articles of incorporation for the medical center provide that any amendments to the center's members must be approved by the Quorum Court.

Good grief, sounds to me like these two entities are pretty near joined at the hip. We shall see how this latest FOIA action turns out. We've experienced a measles-like rash of such violations across our state of late.

Truth is, Arkansas will continue to have FOIA lawsuits until our Legislature decides it's high time to put genuine incisors into the existing law. The way things stand today, our law allows for little more in the way of punishment for willful violators than a slap (better make that more like an affectionate pat) on the wrist and an easily absorbable fine, often borne by the taxpayers.

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Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.

Editorial on 02/17/2019

Print Headline: MIKE MASTERSON: In FOI fray

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