Sebastian County Circuit Judge James Cox took some novel approaches in a 47-page decision striking down a portion of the Arkansas Freedom of Information Act while dealing with a lawsuit that claimed the Fort Smith city government had operated in secret illegally. The decision is being appealed to the state Supreme Court and surely will be overturned. If not, it could set the public’s access to public meetings back to the days before the FOIA became law in 1967.
Generally, Cox tells the Arkansas General Assembly it should go back to the drawing board on access to public meetings and emphasized in his conclusions of law that the courts shouldn’t be doing this for the Legislature.
“… the duty of the courts is to apply the language of the FOIA, and the courts have no privilege or prerogative to amend, take away from or add to the General Assembly’s intended meaning of the FOIA.”
And yet the judge also contends that the Legislature botched its foundation for the access to public meetings law, failing all these years to provide a definition of “meetings.”
Of course, a circuit judge has no authority to dictate what the Legislature ought to do or to overrule what the state Supreme Court has already done. For now, the ruling is effective only in his district, and that’s bad enough. The Fort Smith city government has a history of trying to operate in secret.
Independent reporting for Pine Bluff & Jefferson County since 1879.
First, let’s explain the lawsuit. In 2009 Dennis Kelly, then Fort Smith city administrator, discussed city business with five of seven members of the Fort Smith Board of Directors in a series of private, one-on-one conversations. The purpose was apparently informational, and no action was taken during the conversations.
A local attorney, Joey McCutchen, sued the city, claiming that the FOIA doesn’t allow such “serial meetings” of a public body to be held in private.
Frankly, that’s a rather weak case if the conversations didn’t directly result in action on the issues discussed. In this matter, the city government’s position was different from a 2004 case in which the administrator polled board members to obtain approval to buy property at auction to realign a truck route. The Supreme Court said correctly that was a clear violation of FOIA.
Cox doesn’t agree with that decision, saying in his ruling that it created an “atmosphere of uncertainty and genuine controversy” as to how FOIA could be applied by municipalities. But at least he conceded that he has no authority to overrule or modify that decision.
However, the judge decided that he had the authority to make law in regard to the criminal provision of the FOIA, which was not even an issue in the lawsuit he was considering. No one was charged with violating that provision, which has seldom been used over the years.
Cox found it necessary, though, to declare this provision unconstitutional, claiming that it’s vague and violates the First, Fifth and 14th amendments to the U.S. Constitution, as well as parts of the Arkansas Constitution.
He said the fact that the open meetings laws of 31 states lack criminal provisions is evidence Arkansas doesn’t need one.
The contention in Cox’s decision that the FOIA somehow violates the First Amendment is the most novel of all since freedom of information laws were passed in all 50 states and the District of Columbia in large part to allow citizens to express their right to comment on their government. Without access to government meetings and documents, the citizens have little basis for informed commentary.
But Cox asserts that the FOIA violates the First Amendment rights of city officials by denying them the right to conduct city business in private.
His logic is particularly flawed when trying to justify this conclusion. “Though Arkansas’ FOIA was enacted to further the compelling state interest of open and accountable government, it does not utilize the least restrictive means to achieve that interest,” he wrote. “Public officials and employees do not abandon their constitutional rights when they are sworn in to public office or accept public employment.”
Of course, they don’t. But they do swear to uphold the laws of Arkansas, and one of those is the Freedom of Information Act, which by the way was one of the first in the nation and was used as a model by some other states. It has been constitutional for nearly 45 years.
“The Arkansas Freedom of Information Act,” 4th edition, by two distinguished law professors, John J. Watkins and Richard J. Peltz, is cited often in judicial rulings on the law, including this one by Cox. But he ignored the book’s explanation of a “meeting:” “The term ‘meetings’ obviously contemplates a gathering of at least two persons …”
The law itself says that all meetings of public bodies are to be conducted in public. Whether the meeting takes place in a meeting room, by telephone, by e-mail or in Internet chat rooms, if the purpose is to conduct the public’s business, it’s supposed to be a public meeting.
From the beginning, some public officials have railed against that concept, and they’ve tried all sorts of ways to circumvent the law. Over the years the state Supreme Court has consistently interpreted the law to mean that public meetings should be conducted in public. In his findings of fact, Cox even expressed his frustration with the failure to water down the FOIA. “While many states permit executive session discussions of litigation or acquisitions of real properties, the Arkansas FOIA does not,” he wrote, adding that efforts by the Municipal League, representatives of Fort Smith’s city government and others to change the law “have been rebuffed.” There was no issue about executive sessions in the case he tried.
And here he wants the Supreme Court to undo the uncertainty created by its own opinions on “these policy matters,” somehow changing what could not be changed by lobbying the Legislature.
If previous decisions of the high court are any guideline, its decision here in overturning this ruling should be clear and compelling.
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Roy Ockert is editor of The Jonesboro Sun. He may be reached by e-mail at royo@jonesborosun.com.