Justices Hear Arguments Over Arkansas FOI Law Ruling

by Andrew DeMillo, The Associated Press  on Thursday, Nov. 29, 2012 12:44 pm  

LITTLE ROCK - An Arkansas Supreme Court justice signaled Thursday that the court may overturn a judge's ruling that declared part of the state open records act unconstitutional during a hearing in which lawyers wrangled over the legal definition of a meeting.

Attorneys focused primarily on what constitutes a public meeting as justices heard oral arguments over a Sebastian County judge's ruling declaring part of the Arkansas Freedom of Information Act vague. The judge last year rejected a claim that Fort Smith's former city administrator violated the Arkansas Freedom of Information Act by talking privately with members of the board of directors.

Sebastian County Circuit Judge James Cox ruled last year that the criminal penalty for violating the state sunshine law was unconstitutional. One justice indicated the court likely will find that Cox didn't need to address the law's constitutionality.

"I think we probably agree that the trial court did not have to get into the constitutional issues based on the fact that he said that there was no meeting," Justice Robert Brown said during the hearing.

Joey McCutchen, a Fort Smith attorney, sued the city after its administrator met with directors privately over a proposal to change city ordinances so he could hire and fire department directors at will. The proposal was eventually tabled.

McCutchen's attorney argued that the meetings violated the law because the administrator was actively trying to persuade them to back the proposal, and not just informing them about it.

"You can't undermine the FOI by going one at a time and doing the same thing that would require notice of a public meeting," Brian Brooks, an attorney for McCutchen, told the court.

Fort Smith City Attorney Jerry Canfield said the state FOI law is unnecessarily vague about what constitutes a meeting, and that the Legislature needs to clarify the definition.

"We'd like to know when a set of circumstances is a meeting rather than have to wait every three years for another decision by this court," Canfield said.

Canfield said the criminal penalty section of the law doesn't serve a compelling state interest and that it's unfair that elected officials could face the threat of jail if the law is unclear about what constitutes a meeting. Violators of the FOI law face a misdemeanor criminal charge and up to 30 days in jail. No criminal charges have been filed against any of the officials involved in the lawsuit.

Brooks, however, said Fort Smith was trying to bring up issues that weren't raised in McCutchen's lawsuit by declaring part of the law unconstitutional.

"What is going on here is an attempt by the city of Fort Smith to back this court into a position where it issues an opinion forcing the General Assembly to take up the matter of amending the FOI to deal with all these things it wants dealt with, that has absolutely to do with this case," Brooks said.

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