Guest writers


Pursue transparency over politics

For all of humankind, there have been those who act in their own interests under the facade of representing the public. And for almost as long, there have been those who have opposed government cronyism and corruption. In the modern era, the Arkansas Freedom of Information Act (FOIA) is the single best tool for Arkansans to uncover the hidden machinations of government officials acting in the name of the public but not its interests.

We're both attorneys who regularly use the FOIA. Our experiences have taught us three important lessons: (1) Every legislative session, private lobbying groups hired by government officials, using public money--such as the Arkansas Association of Counties--will nakedly lobby for even less transparency of government bureaucrats; (2) a coterie of elected officials works to preserve the FOIA--such as Sen. Dan Sullivan, with whom we both worked--but these dedicated public servants face strong headwinds from entrenched apparatchiks; (3) when litigating FOIA cases, the outcome significantly depends on the judges' commitment to transparency over politics.

Last month, one of us (McCutchen) made an FOIA request for one year of email from the Fort Smith Board of Directors email group. The city wouldn't respond to McCutchen's original FOIA request or his follow-up email. On June 4, McCutchen filed suit, and five days later, Fort Smith's city attorney sent a letter to McCutchen telling him that no such public records existed. The problem was, however, that McCutchen knew that such emails existed, because he had several of them in his possession.

The case was assigned to Circuit Judge Gunner DeLay. DeLay did an excellent job of following the law and set the case for trial within the seven-day period required by the FOIA. The city tried to subvert the hearing by filing a motion, but DeLay refused to allow the city to avoid addressing its failure to turn over public records.

At trial, the city said that it had no public records responsive to McCutchen's request. So, McCutchen introduced into evidence email after email going to the Board of Directors email group. The city's IT director conceded that emails sent to the email group were received and retransmitted by the Board of Directors email group address.

DeLay lauded the noble purposes of the FOIA, as identified by our Legislature. He said that some requests are "difficult, cumbersome, time consuming, [and] complicated" to respond to, but the production of public records is nonetheless required under such circumstances when an FOIA request is made.

After finding an FOIA violation and ordering the city to produce the documents that did exist, DeLay then said that he would award McCutchen reasonable attorney fees and that McCutchen's attorneys should submit a separate motion for such fees within two weeks.

Contrast this outcome with the FOIA lawsuit brought by Steinbuch against the University of Arkansas, after it refused to produce anonymous admission data virtually identical to those twice previously provided for different time periods. The older data already demonstrated that the law school in Little Rock admitted on average minorities with significantly lower incoming metrics, which correlated to lower Bar passage rates.

When this case came before Circuit Judge Tim Fox, he ordered Steinbuch to hire an attorney to do the job of the university in representing the alleged interests of former students. Fox stated that he was forcing Steinbuch to pay for this government obligation because he (Fox) couldn't force the government to pay for what Fox wanted to do. The problem, perhaps obviously, is that the FOIA requestor isn't supposed to pay for both sides' attorneys--notwithstanding that he already underwrites the government attorney by paying taxes. But the FOIA requestor certainly shouldn't pay on top of that. Fox knew his order was without legal basis but charged on anyway, dumping this improper, transparency-undermining expense on Steinbuch.

When Steinbuch later settled the case and received the key data that the dean at the time of the request refused to produce, the university wrote the order (for Fox to sign) stating that the Arkansas Claims Commission would adjudicate the issue of legal fees. (The Claims Commission awards attorney's fees under the FOIA when the defendant is the state rather than a city or county.) So, Steinbuch's attorney--Chris Corbitt--went to the Claims Commission to get paid.

But when the matter got to the Claims Commission, the university argued, in whack-a-mole style, that Fox should have determined whether Steinbuch "substantially prevailed" when he got the records he ultimately received--the threshold finding required for attorney's fees. So, Steinbuch's attorney went back to Fox, but Fox refused to address the issue of attorney's fees. Indeed, throughout the case, Fox rarely gave any basis for his single-paragraph diktats.

This is not how the FOIA is supposed to operate, nor is it justice. It's just more bureaucracy, the very kind the FOIA seeks to confront. But the FOIA cannot succeed without judges willing to enforce it properly. That didn't happen here.

Judge DeLay followed the law and he is to be commended. It's sad that some judges refuse to follow the requirements of the FOIA.

Robert Steinbuch, professor of law at the Bowen Law School, is co-author of "The Arkansas Freedom of Information Act," now in its sixth edition. Joey McCutchen is an attorney in Fort Smith. Their opinions are their own.

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