LITTLE ROCK — A Sebastian County circuit judged erred when he ruled that portions of the Arkansas Freedom of Information Act are unconstitutional, the state Supreme Court said Thursday in a unanimous opinion.
The high court partially upheld and partially reversed a judge’s ruling in a lawsuit by Fort Smith lawyer Joey McCutchen that alleged the city of Fort Smith violated the FOI law in May 2009 when then-City Administrator Dennis Kelly discussed city business with several city directors in a series of private, one-on-one exchanges.
The Supreme Court upheld Sebastian County Circuit Judge James Cox’s ruling that the meetings did not violate the FOI law but reversed his ruling that the law contains unconstitutional provisions.
McCutchen had argued on appeal that Cox’s ruling was inconsistent with the Supreme Court’s decision in Harris v. Fort Smith. In that case the high court ruled that a different Fort Smith city administrator violated the FOI law when he polled board members individually in private about the purchase of a piece of property.
In its opinion Thursday, the Supreme Court said the present case is different from the Harris case because Kelly did not poll the city directors to see how they would vote on an issue. Instead, the court said, Kelly presented a memo to the directors about a policy change he wanted to propose to give him power to hire and fire city department heads but, according to testimony, he did not solicit the directors’ opinions on the proposal, though some offered their opinions.
“There is no evidence that the issue was discussed or debated” before the board met publicly, the Supreme Court said in its opinion.
Cox had also ruled that the FOI law’s criminal provisions are not the least restrictive means available of advancing the goal of open government, that the law is overly broad because it could affect other areas of speech than those it is intended to affect, and that the law is vague because it fails to make clear what constitutes a meeting.
The Supreme Court reversed Cox on those points.
The high court said Cox’s findings on the constitutionality of the FOI law amounted to “a legal opinion from the circuit court rather than the resolution of an actual controversy.” It said the city had asked for a declaratory judgment on the constitutionality of the law, but because no legal controversy existed, the city was not entitled to declaratory judgment.
The court said Fort Smith city officials have acknowledged that after the Harris decision in 2004 they approached representatives of the press about working on a proposal to change the FOI law, but after concluding that the press was uninterested in changing the law, the officials abandoned their efforts and have never presented any proposal to the Legislature.
“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 opinion.
McCutchen said Thursday he was pleased that the court overturned Cox on the constitutionality issues but disappointed with its finding that the city did not commit an FOI violation. He said the ruling appears to make a “fine-line distinction” between asking city officials how they will vote and obtaining the same information without directly asking for it.
McCutchen also noted that to reach its decision the court had to trust the officials’ account of what went on between them behind closed doors. He said he was not as ready to trust their account.
“We’re supposed to believe there was no discussion? I don’t buy that,” he said.
Fort Smith City Administrator Ray Gosack said city officials were pleased with the ruling that no FOI violation occurred, but “we wish that they would have addressed some of these other vagaries that continue to cause uncertainty.”
Gosack said most states’ open-meetings laws include a definition of “meeting,” but Arkansas’ does not, which he said creates confusion among both city officials and the public. He said city officials will talk with the Arkansas Municipal League about possibly proposing changes to the FOI law in the legislative session that begins next month.
“I’m hoping this court ruling will encourage the Legislature to bring more clarity to the FOI for everyone’s benefit,” he said.
Tres Williams, spokesman and head lobbyist for the Arkansas Press Association, which filed an amicus brief in the case, said he was pleased that the court overturned the circuit judge on constitutionality issues but was disappointed by the ruling that no FOI violation occurred.
“I understand the distinction the court is making, but it’s right there in the case law pertaining to the Freedom of Information Act that it should be construed in favor every time of disclosure and public participation,” Williams said.