Attorney says clear language in FOI law would halt abuses

A Fort Smith attorney who has been at the center of Arkansas Freedom of Information Act battles in west Arkansas said that clear statutory language could prevent what happened in Garland County earlier this month, when a committee of elected officials, court officers and law enforcement officials met without notice.

Joey McCutchen said the Criminal Justice Advisory Committee, which made no objections to a recommendation to temporarily close the Garland County jail to new male inmates, has all the makings of a panel required under the law to notify the media before convening. The jail was temporarily closed after the committee met July 10, but it reopened July 19.

"Generally, notice is going to be required if a governing body is meeting," said McCutchen, who argued in a 2011 lawsuit that the city of Fort Smith violated the open-meeting requirement of the Freedom of Information Act.

A Sebastian County circuit court dismissed his claim, with the state Supreme Court affirming that the city's chief executive didn't violate the law by distributing a memo recommending the passage of an ordinance to city board members before a meeting.

"Under what authority are these people meeting?" he asked, referring to Garland County officials. "Is this a government-appointed committee? They all seem to be government officials."

A consultant's report that Garland County commissioned recommended that the jail's Population Management Committee be expanded to include judges and court officers. The Garland County Quorum Court Public Health, Welfare and Safety Committee in May recommended that members of law enforcement, the Quorum Court, the criminal justice system and community be included on the jail committee.

The recommendation was never adopted by the full Quorum Court. According to minutes from the Criminal Justice Advisory Committee's July 10 meeting, the panel includes four elected officials: Division 1 District Judge Joe Graham, Division 1 Circuit Judge John Homer Wright, Prosecuting Attorney Michelle Lawrence and District 9 Justice of the Peace Matt McKee.

The minutes reflected that Wright was in attendance. Sheriff Mike McCormick, whom the committee's May 29 charter lists as an ex-officio member, also attended.

"If not a violation of the letter of FOIA, it's certainly a violation of the spirit by this committee, whether it was officially appointed or not," McCutchen said. "Why would you not want the media there or the public there to see if you're going to close the jail? The Supreme Court has said we're entitled to see the why and not just the final result."

McCutchen said having four elected officials from four different entities could be seen as a means of circumventing the law. Elected officials from the same body discussing items they could potentially act on generally qualifies as an open meeting subject to the notification requirement, but a recent state Supreme Court ruling in a case McCutchen litigated has blurred what was previously a bright line interpretation of the Freedom of Information statute.

The high court ruled in a case involving an email discussion between members of the Fort Smith Board of Directors and a city administrator that an informal meeting of elected officials has to include several elements to qualify as an open meeting. The 5-2 majority opinion issued last month said emails proposing the dissolution or alteration of the city's Civil Service Commission were informational and not a discussion of the board's intentions.

The high court overturned a circuit court ruling that said the email conversation violated the open meeting requirement. McCutchen has petitioned the Supreme Court to reconsider its ruling.

He said clear statutory language defining the elements of an open meeting is needed in the wake of the latest interpretation of the Freedom of Information law. If the Arkansas Legislature won't act, he's considering going directly to the people through a citizen-initiated ballot proposal to amend the state constitution.

"Put it in the constitution so there's no ambiguity," he said.

State Desk on 07/28/2019

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