The high court and the FOIA


The sad truth about the law is that it is not always what you want it to be.

Take the Arkansas Supreme Court decision Thursday that Fort Smith did not violate the Freedom of Information Act when former City Administrator Dennis Kelly distributed information about an ordinance he wanted to propose — not as part of the weekly packet of information that routinely goes to all directors, but individually, sometimes adding a do-pass recommendation and sometimes receiving word from directors about how they planned to vote.

Fort Smith attorney Joey McCutchen thought that was outside the bounds of what the city could do legally, so he brought suit. Circuit Judge James Cox ruled in 2011 that the city acted within its rights. Mr. McCutchen appealed that decision to the state Supreme Court. On Thursday the court agreed with Judge Cox and ruled that, because Kelly did not ask directors how they would vote, no violation occurred.

And so it would have ended, except that Judge Cox had to kick the dog. In his Circuit Court ruling, after determining no violation of the Arkansas Freedom of Information Act occurred, he declared the act unconstitutional. He said it violated the rights to free speech and due process, that it was over-broad and under-specific. He was particularly incensed about its “criminal penalties,” which are that someone violating the law could be found guilty of a Class C misdemeanor.

The Supreme Court disagreed.

“The applicability of the FOIA is a matter of public policy that should be left to the General Assembly,” stated Chief Justice Jim Hannah in the decision. “… Public policy is for the General Assembly, not the courts.”

The act, Hannah stated, “does not attempt to give an exact description of every conceivable fact situation that might give rise to the application of the FOIA.” But the courts, through their collective decisions, help to define the law’s extent.

Hannah provides several examples of courts establishing boundaries. Rulings show that when a business on its own contacted Quorum Court members, no violation occurred. When staff members of the Human Services Department met, no violation occurred. A telephone poll of an Executive Committee subject to FOIA was a violation when there was no emergency and no emergency public notice. A small group of council members meeting to discuss business likely to come before the whole council was a violation. A committee of a group subject to FOIA is itself subject to FOIA.

Thursday’s ruling points out that the Legislature is aware of court decisions but has taken no action and has given no signal it thinks the court is wrong.

Indeed, Hannah notes that Fort Smith itself has taken no action “to cure (its) problems with the FOIA.” Not in 2005, 2007, 2009 or 2011. Former Administrator Kelly said he thought the Arkansas Legislature could easily improve its law, but he noted he had not brought the issue to any legislator because he “just hadn’t had the time.”

We do not pretend to know what was in Judge Cox’s mind when he issued his ruling or what was in city attorney Jerry Canfield’s mind when he argued this case.

Thursday’s decision makes clear that the court stands behind its earlier decision in the Harris case and sees it as an integral part of its consistent interpretation of the FOIA.

Proponents of open and transparent government like the Arkansas Press Association are disappointed that the Supreme Court ruled that Kelly’s actions were not an FOI violation. But we understand the difference between the 2011 case and Harris, and now we know where the court draws the line.

As for those people who don’t like the Harris decision, we draw their attention to the conclusion of Thursday’s ruling: Their “discontent with our (the Supreme Court’s) decision in Harris is not a compelling reason to override precedent. Therefore we decline to do so.”