In a divided decision sure to spur confusion and lawsuits, our state's Supreme Court basically ruled that ,to violate our state's Freedom of Information Act, communications between members of a public body (including via email) requires soliciting responses from its participants, as well as decision making and involvement by a majority of its members.
That was the dissenting analysis of Associate Justice Josephine Hart who wrote that future FOIA actions after this ruling "will almost certainly require a lawsuit to resolve."
The 5-2 majority decision written by Associate Justice Courtney Goodson and supported by Chief Justice Dan Kemp, and Justices Karen Baker, Shawn Womack and Rhonda Wood, in my opinion was an assault on our FOIA and reversed and remanded 43 years of FOI-related case law that attorneys, prosecutors, the media and general public have relied upon as reasonable.
The ruling stemmed from an appeal by the city of Fort Smith following a 2017 FOIA-violation summary judgment against the city in Sebastian County Circuit Court. Filed by Bruce Wade of Fort Smith and represented by Fort Smith attorney Joey McCutchen, that matter involved city directors Keith Lau, Mike Lorenz and Andre Good being found guilty of violating the Freedom of Information Act in private email exchanges proposing and discussing changes to the authority of the police chief versus that of the local Civil Service Commission.
The high court determined the two pre-meeting email chains failed to constitute the definition of a public meeting, because their focus was on city-related information that didn't result in a decision. Previous high courts determined electronic communication via phone or email is subject to FOIA if it prompted results or actions.
Exempting communication methods would allow government officials "so inclined to make decisions in secret, leave the public in the dark and subvert the purpose of the FOIA's open-meetings provision," the court determined. However, in this instance, the majority found officials were only discussing "background information" and sharing thoughts that did not lead to a decision.
It's naïve to believe these sorts of "informational discussions" of public business aren't regularly occurring statewide among many officials responsible for openly conducting the public's business.
The state's FOIA, passed in 1967, says, "[A]ll meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships and school districts and all boards, bureaus, commissions or organizations of the state of Arkansas, except grand juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings."
McCutchen said the Supreme Court previously found no difference in the treatment of a formal or informal meetings among public bodies. That logic was clearly understood as part of the state's Open Meetings Act. "It is a dramatic change in the law."
Fort Smith appealed the initial summary judgment, arguing emails can't constitute a meeting because neither the Arkansas General Assembly nor the Supreme Court has ever specifically stated a meeting can be constituted via email. Plus, even if emails can in some cases amount to a meeting, the contents of the emails its officials exchanged was only background information provided in advance of subsequent meetings.
McCutchen, who over the years has emerged as a leading Arkansas attorney in FOIA matters, issued a statement immediately following the ruling: "The Supreme Court's decision today will undermine the ability of Arkansans to see and evaluate the actions and performance of public officials, which is extremely detrimental to both transparency and good government."
He agreed with Justice Hart's dissent, which said: "In the case before us, the email group was established to discuss public business, which the directors obviously did. Today's majority opinion denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret. Secrecy is poison to democracy."
McCutchen was pleased the court chose to reaffirm the larger overall finding that exchanges of emails between public officials can constitute a public meeting under the Open Meetings Act. However, McCutchen stated, the court's "additional description that emails that not only contain information but also a recommendation and unsolicited responses creates unneeded ambiguity in the law and will encourage government actors to violate the intent and spirit of FOIA."
The attorney now seeks to clarify confusion by petitioning the high court for a rehearing and hopefully carefully define a "meeting" in accordance with the legal requirement that FOIA must be liberally construed.
From there, he'll head to the Legislature to ask that body also to define a meeting "in a way that ensures that public business is performed in an open and public manner, as the Supreme Court recommended the city of Fort Smith do seven years ago."
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Mike Masterson is a longtime Arkansas journalist, was editor of three Arkansas dailies and headed the master's journalism program at Ohio State University. Email him at mmasterson@arkansasonline.com.
Editorial on 06/25/2019