Keeping teeth in the FOIA


Since 1967 citizens of Arkansas have been blessed with a model Freedom of Information Act to help provide them with access to the workings of their local governments.

This is “Sunshine Week,” the annual campaign of the American Society of News Editors and newspapers like The Pine Bluff Commercial, designed to focus attention on the importance of freedom of information and open government.

The FOIA serves the public, not just reporters. It opens the doors to information at every level of municipal, county and state governments. It is literally the people’s law.

Local government touches us directly, and most citizens who participate directly in the democratic process participate on the local level by attending meetings of city councils, quorum courts and school boards.

The Commercial has participated in two statewide audits of the FOIA. We have also filed legal actions in the courts to enforce provisions of the act.

One suit that went to the Arkansas Supreme Court upheld the right to have certain records of the Pine Bluff Police Department available to anyone who asks for the information. That ruling has been upheld numerous times in other cases before the high court.

Politicians will always promise to do the right thing, to be open and transparent, but quickly learn to duck problems by hiding the information that might point a finger of blame elsewhere. The best government is one exposed to sunshine, especially when the elected and appointed may worry more about political risks than obeying a law.

If our real property taxes are raised and you want to challenge the increase, you don’t call your congressman. You can contact the local assessor. If there’s a development proposed in our town, you can challenge the development armed with information obtained through a FOIA request. You have a right to see the numbers that go into our budgets before the budgets are adopted.

Sometimes there is intent to shield information from the public as a means of keeping the public in the dark. That’s where the FOIA comes in to play.

The Arkansas Supreme Court last week granted requests from Attorney General Dustin McDaniel and two journalists’ organizations to submit briefs in support of a challenge to a ruling that portions of Arkansas’ FOIA are unconstitutional.

McDaniel, the Arkansas Press Association and The Reporters Committee for Freedom of the Press argue in their briefs that a Sebastian County Circuit Court judge erred in the ruling he made in a lawsuit alleging the city of Fort Smith violated the act.

The high court also allowed Stephens Media, which owns The Commercial, to join in the brief filed by the journalists’ groups. A Fort Smith resident is appealing an October ruling by Circuit Judge James Cox that provisions in the FOIA providing for criminal sanctions violate the state and U.S. Constitutions.

Cox’s ruling dismissed a lawsuit that alleged the city of Fort Smith violated the FOIA in 2009 when then-City Administrator Dennis Kelly discussed city business with several city directors in a series of private, one-on-one conversations. Cox held the law’s misdemeanor penalties are not the least restrictive means available of advancing the goal of open government.

McDaniel argued in his brief that criminal prosecution was not a part of the civil suit, so Cox should not have considered the question of whether the criminal penalties in the law are constitutional. Courts in other jurisdictions have consistently upheld the constitutionality of penalty provisions in open government laws, McDaniel noted his brief. By eliminating the criminal penalty, Cox only weakened the law. Allowing citizens to seek penalties for violations keeps teeth in the FOIA and the attention of officials trying to hide public information.