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MIKE MASTERSON: Toothless law

by Mike Masterson | December 11, 2018 at 4:30 a.m.

I can imagine some readers rolling their eyes today as I write yet again about our state's much abused Freedom of Information Act.

But this law truly is a crucial tool that gives the people power to hold accountable those we elect and appoint by disclosing what they are up to supposedly in our best interests. It's not a law to be mocked or ignored, as is the case in many Arkansas communities today.

There exists an assumption that FOIA mostly benefits newsgatherers when, in fact, this law serves any citizen needing information generated and held by governments. Although I might bore some when I write about it, try to imagine where we'd be without a law that forces governments to reveal their activities.

While Arkansas has long been acknowledged as having one of the country's stronger Freedom of Information Acts, I believe it's long past time for the Legislature to put meaningful teeth into the farcical gumming of sorts it now administers on violators.

From everything I can tell, violations are becoming commonplace across Arkansas, from town councils to school boards and most recently a county coroner who proudly defied and disrespected this law. Too many self-interested public servants have come to believe they can ignore the law without meaningful repercussion.

Fear of public humiliation or shame certainly hasn't deterred the champions for secrecy, nor has the threat of a minimal fine or a "bad boy!" knuckle noogie from the local judge.

If our lawmakers would put on their big-boy custom-tailored silk suits and develop significant penalties, I will guarantee the unacceptable proliferation of public servant scofflaws would come to a brake-squealing halt.

When the state's Freedom of Information Act was passed in 1967, it was to ensure public records and meetings were readily open and available to the people: Elected officials could not gather in secret or withhold records of the deliberations and decisions made by governing officials. It was a badly needed, necessary and noble law acclaimed far and wide as an example of a state ensuring public transparency.

But that was before the age of texts, emails and cell phones. Today, opportunity abounds for violating the spirit and provisions of the law. And based on lawsuits by a relatively few attorneys and local prosecutors intent on trying to thwart this lawbreaking by insisting on accountability, the scourge of disrespect certainly appears to be flourishing.

I'm by no means alone in my feelings about the need for far stronger deterrents.

Respected Little Rock attorney Sam Perroni, with considerable experience involving FOI matters over the years, as well as experience with open-records laws in California and Nevada, has successfully sued judges, sheriffs, the Arkansas Judicial Discipline and Disability Commission, Los Angeles County and coroners.

The same serious problem with secrecy in public business exists in every state, he told me, and there's just no real teeth in the acts for arrogant officials or government employees who ignore their obligations under the law. Those seeking to protect the lawbreakers will tell you, he said: "Well, if you win, you can get attorney fees and costs. That's half true. The payment of that money only hurts the taxpayers." In other words, we pay for their misdeeds.

"The only effective way to stop the abuse is by mandating individuals or public officials who abuse the spirit of FOIA be sanctioned personally if it's found their denials or stalling tactics were in bad faith," Perroni said. "It's one thing for an agency to rely on a sound exception in the act for denying access to public records, but quite another for them to deny access on meritless grounds."

The attorney says he's tried drawing attention to the matter to no avail. "It will take a concerted effort by the press to get anything done. It's a serious problem for ordinary citizens who do not have the resources to sue the government agencies every time an employee/officer decides to deny a simple, lawful request when they know the citizen can't fight them."

Aren't the wants and needs of ordinary citizens seeking facts on how their governments are operating the very reason we have this important law?

Joey McCutchen, the Fort Smith lawyer I justifiably call a "bulldog" for his similar readiness to file successful FOIA lawsuits (without expecting to profit for himself) shares my beliefs and Perroni's views.

McCutchen believes all employees and officials in public offices should be required to attend meaningful FOIA training sessions led by qualified instructors.

"I also believe we need stiffer fines in civil penalties," said McCutchen, whose proven violators include town councils and school boards.

This leaves me wondering which legislator or legislators has enough integrity to stand up, shout "Enough already!" and introduce legislation that deters today's steady flow of violations by implanting some actual teeth into this important law that has been gumming its way along for decades. Who will serve the people rather than themselves?


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

Editorial on 12/11/2018

Print Headline: MIKE MASTERSON: Toothless law


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