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MIKE MASTERSON: Freedom of Information

Needing clarity by Mike Masterson | June 6, 2017 at 4:30 a.m.

The Arkansas Supreme Court has been asked to review an Arkansas Appeals Court decision that I believe carries ominous implications for the state's Freedom of Information Act. And unless it agrees to accept the review, the decision could virtually eliminate the legal eligibility of many citizens to even ask a court to enforce the law.

It's my understanding the Appeals Court inexplicably found that unless a person asks to receive notice of a called school board meeting, he also forfeits the right to file a Freedom of Information complaint.

This ruling is the narrowest possible interpretation, since it severely limits or eliminates the ability of most citizens to seek the court's assistance in pursuing such violations. Yet our highest court has always insisted the freedom of information law be broadly construed in favor of vast disclosure.

Implemented in 1967, the state's Freedom of Information Act was designed to ensure that corruption did not occur and the actions of state, county, and local boards, agencies, and commissions were conducted with transparency. School boards are specifically included within the requirements. Regularly scheduled school board meetings can legally occur only after notice to the media and to any member of the public requesting notice.

I'll start at the beginning of this important development. The Supreme Court's mandatory broadest interpretation existed until the Appeals Court in March issued a decision in the case of June Bradshaw v. Fort Smith School District, says Fort Smith Attorney Joey McCutchen, who's made headlines of late for cases involving government transparency, or rather the lack of it.

Bradshaw (a resident of the district) had complained about the Fort Smith district's failure to provide public notices for a committee meeting of a majority of the school board. An official notice that was issued said the board meeting would be closed because it concerned evaluation of the school superintendent, and personnel matters are legally allowed outside public view.

The problem arose when a second meeting of a committee was called following one member's late arrival that day, but without legally required notice to the media, McCutchen said.

The media represents the public at school board meetings. Although this separate meeting was held with no notice to the press, the Appeals Court ruled the lack of a separate notice was acceptable because one had been issued about the meeting that had been closed to the public.

"That decision was made even though no public notice of this separate meeting of a committee of a majority of board members was given," said McCutchen. "Arkansans must question how this finding is consistent with the high court's requirement of broadly construing our FOIA. If there are two meetings, it seems logical that notice of two meetings must be given. Yet our Court of Appeals ruled differently."

Even more to the point, in its ruling for which McCutchen is seeking the Supreme Court's review, the Appeals Court found Bradshaw was not even eligible to file her suit because she hadn't previously filed a formal request to receive notice of board meetings.

"This seems inconsistent with the fact that citizens may only request notice of regular school board meetings, not a special meeting, as occurred in Bradshaw's case," said McCutchen. "The applicable law only requires notice of special meetings be given to the media but not to the public. That law states with respect to special board meetings: 'Notification [to the media] shall be made at least two hours before the meeting takes place in order that the public shall have representatives at the meeting.'"

All this leaves me wondering how any state's sunshine law can possibly be interpreted as eliminating the right of a taxpaying citizen to enforce the law in a courtroom simply because that person did not formally request specific notice of a board's meeting.

Yet that's what the school district now contends in Bradshaw's ongoing lawsuit over a series of emails between board members that discussed and selected its slate of officers. The board's attorneys are seeking to dismiss that suit based on the Appeals Court's decision in an earlier case that found Bradshaw had failed to personally ask in advance for such notice.

Here's hoping the Supreme Court chooses to review this shocking Court of Appeals action that says a citizen must request personal notification for school board meetings to retain legal standing.

This issue matters to all of us, if for no other reason that freedom of information and the resulting cleansing light of transparency from the broadest possible interpretation of the Freedom of Information Act don't become a thing of the past.

Three to two

To all valued readers who have followed or been pleased or bothered by the opinions I've shared three times weekly for 16 years in this space, I bear news that times, they are a changin'.

Effective July 1, the paper's editorial page will reduce my columns from three to two weekly. The Saturday column is going by the wayside. Afterwards, I hope you will continue to read each Sunday and Tuesday and, as always, feel free to share your responses.


Mike Masterson is a longtime Arkansas journalist. Email him at [email protected]

Editorial on 06/06/2017

Print Headline: Freedom of Information


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