Fort Smith will appeal ruling directors violated FOIA

Posted: February 8, 2018 at 1:06 a.m.

FORT SMITH -- City directors voted Tuesday to proceed with appealing a Jan. 4 Sebastian County Circuit Court ruling three directors violated the Arkansas Freedom of Information Act by using email to discuss city business.

The directors voted to confirm the Jan. 30 filing of a notice of appeal to the Arkansas Supreme Court by city attorney Jerry Canfield. A memo to directors from City Administrator Carl Geffken said Canfield filed the notice to avoid missing the 30-day deadline to appeal Judge Michael Fitzhugh's decision.

"Under the facts of this case, the court concludes that informal meetings subject to the FOIA were held by way of emails," Fitzhugh wrote in granting a summary motion to Bruce Wade, who sued the city and its directors over the email discussions. "The purpose of which were to either opine or survey the members as to the demise of the [Civil Service Commission] and/or acceptance/rejection of a settlement. These are clearly matters that should have occurred in a public setting."

Fort Smith attorney Joey McCutchen, who filed the suit on Wade's behalf, said the email discussions constituted a public meeting for which notice to the public and media should have been given.

Two days after Canfield filed the notice of appeal, McCutchen filed a motion asking for more time to file a request the city pay his attorney fees and costs.

In a response Monday to McCutchen's request for more time, Canfield wrote McCutchen proposed a settlement Jan. 8 in which he wouldn't seek attorney fees and costs if the city didn't appeal Fitzhugh's ruling.

Canfield wrote McCutchen's settlement offer was presented to city directors at their Jan. 23 study session, but they took no action to place the proposal on their Tuesday agenda for a vote.

Wade's lawsuit claimed the directors -- Andre Good, Keith Lau and Mike Lorenz -- violated the act twice, once in May when Good and Lorenz discussed whether the Civil Service Commission should be dissolved and again in August when Lau discussed with Geffken through email whether to accept a settlement proposal from McCutchen on the May email.

In granting summary judgment for McCutchen, Fitzhugh rejected a motion for summary judgment from the city.

A judge will consider a summary judgment when there are no disputed facts for a jury to decide, leaving only the applicable law for the judge to rule on the case.

Canfield argued electronic communication such as email cannot constitute public meetings.

"In a half century of interpreting the FOIA, neither the Arkansas Supreme Court nor the Arkansas Court of Appeals has ever held that a 'public meeting' pursuant to the FOIA could be accomplished or constituted by electronic mail," Canfield wrote.

They were no electronic communications when the Arkansas Freedom of Information Act was adopted in 1967, he argued. When email and other electronic communications became more widespread, the Arkansas attorney general ruled they were public records. The Arkansas Legislature amended the act in 2001 by Act 1653 to include electronic or computer-based information as public records.

Canfield asked Wade's lawsuit be dismissed because the Arkansas General Assembly expressed no intention the Freedom of Information Act requirements on public meetings applied to email communication.

In ruling against the city, Fitzhugh cited the 2004 state Supreme Court decision Harris v. City of Fort Smith in which the court ruled Fort Smith violated the Freedom of Information Act. In that case, the city administrator at the time had polled each director by phone on a proposed bid to purchase land.

"The Supreme Court held that individual contact with board members by the city administrator involving city business without notice to the public constituted an informal board meeting subject to the FOIA," Fitzhugh wrote.

NW News on 02/08/2018