Agency to reveal director applicants

It reviews stance after McDaniel weighs in

A day after Attorney General Dustin McDaniel called on the Arkansas Game and Fish Commission to disclose the documents, the panel voted Friday to release copies of applications submitted for its permanent director job rather than wait until the application deadline to unseal and disclose them.

“I think a court would have declared they had no choice but to take this course, so it was best to avoid litigation,” said McDaniel.

But Rick Watkins of Little Rock, chairman of the commission’s personnel committee, insisted that the commission hadn’t erred.

He said commission attorney Jim Goodhart made a recommendation for the commission “to err on the side of openness” and consider opening the envelopes with the applications immediately, out of respect for McDaniel’s opinion.

The attorneys on which the commission relies for legal counsel believe that the state Freedom of Information Act allows the commission not to disclose applications for the job until the panel unseals and opens them, Watkins said.

“We are still acceptingtheir counsel on that, but in light of the recent controversies we decided if there was any doubt that we would err on the side of openness and voted unanimously to open the records,” Watkins said.

“We’re hearing competing and conflicting legal evaluations,” he said.

On Monday, the commission tabled a proposal to draft its own version of state rules governing public access to commission information. Its version would have released less information to the public. That version was shelved after outcries from the public and rebukes by Gov. Mike Beebe and McDaniel that the commission should follow the state Freedom of Information Act.

In light of commissioners’ actions in the past two weeks, Sheffield Nelson, an attorney and former commission chairman, announced Wednesday that he would amend his lawsuit against the panel to seek declarations that it must obey the Freedom of Information Act and Administrative Procedures Act.

Nelson’s lawsuit in Pulaski County Circuit Court contends that the commission violated the Administrative Procedures Act by notmaking proposed rule changes public before enacting them in a June restructuring.

On Wednesday, Watkins said he believes that the Freedom of Information Act allows the commission not to release applications for its director’s job until it opens them after the application deadline.

That came after commission Freedom of Information Act coordinator Diane Boone told the Arkansas Democrat-Gazette in response to a public-records request that the commission has instructed that applications be submitted to Erwin & Co. of Little Rock and the firm has received two envelopes, “which in accordance with the written application/ selection process will remain unopened until after the close of the application period.” The personnel committee on Wednesday voted to extend the deadline for applications from Oct. 31 to Nov. 15.

McDaniel said Thursday that he doesn’t see any exemption in the Freedom of Information Act “that would allow for this course, and I think Mr. Goodhart should make this clear to his client.”

“No agency has circumvented disclosure of those records by creating some third-party holding process,” McDaniel said.

He said he questioned Goodhart about whether he had legal grounds to advise the commission that this “was an appropriate course,” and Goodhart told him that the envelopes are still sealed.

There is no sealed-envelope exemption in the Freedom of Information Act to withhold disclosure of job applications, McDaniel said.

But Goodhart later Thursday likened the sealed envelopes to sealed bids for construction contracts.

The commission doesn’t want to give an advantage to competitors seeking the permanent director’s job, he said.

Goodhart pointed to exemption (b)(9)(a) of the Freedom of Information Act to maintain that the commission could legally withhold the applications from the Democrat-Gazette until the commission opened the envelopes.

The exemption is for “Files that, if disclosed, would give advantage to competitors or bidders, and records maintained by the Arkansas Economic Development Commission related to any business entity’s planning, site location, expansion, operations or product development and marketing, unless approval for release of such records is granted by the business entity.”

Other state agencies, such as the Arkansas Lottery Commission and Arkansas Teacher Retirement System, have released copies of the applications for their top jobs upon the Democrat-Gazette’s request under the Freedom of Information Act.

Just because some other state agencies haven’t used this exemption to withhold release of copies of job applicants, that doesn’t mean that it isn’t legal and reasonable, Goodhart said.

He said he tried to explain to McDaniel that the commission’s attorneys thought there was a good legal basis for the commission’s actions.

A day later, Watkins called the Democrat-Gazette to announce the commission’s decision to release the applications for the permanent director’s position.

The commission said one full application and one resume have been received so far.

Michael L. Armstrong, assistant director for the commission, has submitted an application, according to a copy provided by the commission. Term-limited state Rep. Bill Abernathy, D-Mena, wrote a recommendation letter to the commission for Armstrong.

Watkins said he encouraged Armstrong to apply for the job. He said he has also encouraged interim director Loren Hitchcock to apply, but Hitchcock hasn’t done so yet. Some lawmakers have suggested that the commission hire Hitchcock for the permanent job.

Northwest Arkansas, Pages 13 on 10/30/2010

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