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OPINION | MIKE MASTERSON: FOIA victory

by Mike Masterson | September 14, 2021 at 2:00 a.m.

Score another significant victory for our Freedom of Information Act thanks to a ruling from Washington County Circuit Judge Mark Lindsay.

Ila Campbell of Fayetteville and her attorneys Joey McCutchen and Chip Sexton of Fort Smith (with UALR law professor Robert Steinbuch), successfully argued the Fayetteville Public School District (FPSD) violated the act by not adequately responding to an FOIA request from Campbell concerning the district reportedly "being foisted upon teachers and children in the district."

The suit, filed June 25, also sought information from the district about LGBTQ policies and gender-support plans, use of the word "Christmas," and the district retaining the Converge Social Justice Consulting Firm of New Orleans. Lindsay ruled the district violated FOIA and ordered it to pay attorney's fees.

Campbell's complaint arose following two separate FOIA requests submitted to Fayetteville's district.

The district initially responded: "With respect to your request for records under this item, the District has reviewed your request and determined that it is not sufficiently specific to enable the custodian of the records to locate the records with reasonable effort, given that there are over 1,500 staff email accounts. Please consider narrowing this request to include only the District Leadership Team."

McCutchen said the district had been "playing games and simply avoiding and evading the FOIA by trying to force Ms. Campbell to limit her FOIA request for public documents." The lawsuit notes the public records were available although the district declined to produce them, he said.

"As noted in our complaint, the Arkansas Supreme Court made it clear an entity required to produce public records cannot escape by claiming the response would be broad and burdensome. FPSD behaves as if it owns the governmental entity and that the public works for it--not the other way around," said McCutchen.

"Judge Lindsay gave a fair trial," McCutchen told me. "He listened to the evidence rather than political winds in the city of Fayetteville." McCutchen said Lindsay formulated a well-reasoned judgment by citing the FOIA's intent: "It is vital in a democratic society that public business be performed in open and public manner so that the electors shall be advised of the performance of public officials and of decisions that are reached in public activity."

McCutchen continued: "We must never allow government to respond to FOIA requests, in our case six different FOIA requests, with the arrogant response that 'the request is not sufficiently specific to enable the custodian of records to locate the records' (the district's response in four of the FOIA requests). If the requested records are accessible, they should be produced."

McCutchen also said filing the suit disclosed valuable insights. Within days of filing, FPSD produced over 8,000 records on the subjects. From those McCutchen and Campbell said they realized the tenets of critical race theory are "being foisted upon teachers and children in the district through Converge Social Justice Consultants of New Orleans who is playing a strategic role in establishing the new program (without calling it CRT.)"

Campbell said emails from her FOIA confirmed a partnership between Converge Social Justice and FPSD. "This influence continued into the so-called U of A IDEALS Institute, which later partnered with the district to write and implement a five-year equity plan. There is no question about the district understanding the influence and role Converge played in the plans eventually leading to the equity plan.

"The influence of the Converge consultants is rooted in critical race theory values and principles. The efforts and influence of Converge led to the eventual writing and implementation of that five-year equity plan, while hiring Dr. Sydney Lanier to facilitate professional development training he described as based on the six tenets of Critical Race Theory," she added.

However, FPSD contends it's not adopting CRT curriculum. Campbell also tells me, "How can the district continue to deny that when it has now been revealed through the FOIA request? A valid question in my mind.

"It was also telling the district hired two lawyers to fight our lawsuit," said McCutchen. "The district's lawyers provided the court a 38-page brief on reasons they believed they hadn't violated FOIA. I wonder how many dollars this case cost Fayetteville's taxpayers?"

Judge Lindsay ruled the district violated FOIA by not responding to Campbell's FOIA request within the legally prescribed three days. "The district blatantly provided their response after the FOIA deadline," said McCutchen. "My hope is that we sent a message to Fayetteville's district and beyond to respect our FOIA, or expect to be hauled into court."

Clearly, Arkansas needs legislators to do the right things by adopting far more meaningful punishment for public bodies who choose to violate the act.


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.

Print Headline: FOIA victory

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