Analysis: Court case highlights FOI complaints

Judge said law was too vague for criminal penalties to be fair; high court disagreed

By Andrew DeMillo
Associated Press

LITTLE ROCK, Ark. (AP) — The state law guaranteeing Arkansans’ right to open records and meetings is safe for now. That doesn’t mean there aren’t people with gripes about the law who want to see it changed.

The Arkansas Supreme Court’s ruling this month that a judge was wrong to toss out part of the state’s Freedom of Information Act as unconstitutional means the Legislature will avoid re-opening a debate over the nearly 46-year-old law. It also highlighted the holes that both sides in the case say they eventually want lawmakers to resolve.

The Legislature is ultimately where the complaints will have to be addressed, justices said as they overturned a ruling by Sebastian County Circuit Judge James Cox, who said last year that the law was too vague for the criminal penalties to be fair. Cox struck down part of the ruling in turning down a Fort Smith attorney’s lawsuit claiming that a city administrator was illegally having meetings with individual members of the city council.

“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,” Chief Justice Jim Hannah wrote in the court’s ruling.

The court’s unanimous decision was one that left both sides unhappy and pointed to holes they see in the Arkansas FOI law.

Joey McCutchen, the attorney who accused Fort Smith officials of violating the open meetings law, was handed a defeat by the court when it said the FOI law wasn’t violated when the city administrator held a series of one-on-one meetings with city directors.

McCutchen said he’s torn on whether the Legislature should revisit the law, but said he believes the ruling leaves uncertainty on how far officials can go in one-on-one discussions before they’re considered a public meeting under the law.

“In my estimation, maybe there needs to be some legislative clarification,” McCutchen said.

For Fort Smith city officials, the decision gives lawmakers a reason to revisit the law, rather than see it land in court every few years.

“It helped bring some clarity to the ambiguity, but it’s much better to have the clarity brought to us by the Legislature than the courts,” Fort Smith City Administrator Ray Gosack said. “In essence, the courts in a way are having to do the Legislature’s work because the Legislature hasn’t defined what a meeting is.”

FOI advocates say the law was intentionally broad and have consistently resisted efforts to look at rewriting it. Tom Larimer, executive director of the Arkansas Press Association, said the fear is that trying to revise the law would open the door for changes that would restrict the public’s access to meetings and records.

The gripes from cities around the state go beyond the definition of a meeting, including their concern that the law prevents city boards and councils from considering real estate transactions or talking with attorneys in private. Gosack and the Arkansas Municipal League, however, say they don’t have any plans to lobby the Legislature for changes next year.

“It just seems like these things no matter how well-intentioned turn into an opportunity to change the law in such a way that does not benefit access for the public, whether it’s to meetings or records,” Larimer said.

That’s why Larimer and other advocates were nervously eyeing the court to see if rewriting Arkansas’ FOI law would be added to an already crowded and contentious agenda for next year’s Legislature. With the court upholding the law as constitutional, that threat has subsided for now.

“It may not be perfect, but it’s serving the state very well,” Larimer said.