AG McDaniel to appeal Fort Smith FOIA ruling

Attorney General Dustin McDaniel plans to appeal the ruling by Sebastian County Circuit Judge James Cox that a portion of the Arkansas Freedom of Information Act was unconstitutional.

McDaniel on Monday (Oct. 10) filed a motion to intervene and a motion to stay pending appeal the decision by Cox related to a lawsuit filed by Fort Smith attorney Joey McCutchen against former Fort Smith City Administrator Dennis Kelly. McCutchen, who was later joined by David Harris, alleged that Kelly’s phone conversations with members of the Fort Smith Board of Directors in 2009 essentially amounted to Kelly conducting the city’s business in private. Kelly said he was simply explaining to the board his ideas on redrafting the city’s hire-fire authority.

Harris previously had won a similar lawsuit that found former City Administrator Bill Harding had violated the FOIA by polling board members about a decision to buy a building in downtown Fort Smith.
 
Cox said in his recent ruling that provisions of Arkansas’ FOIA providing for criminal sanctions violated the state and U.S. constitutions because they criminalized what he found to be violations of vague rules. Cox said misdemeanor criminal charges under the FOIA are unconstitutional because they failed a “strict scrutiny” standard.
 
McDaniel said in a statement that a stay would avoid confusion about the FOIA’s applicability until the state Supreme Court reaches a binding decision.

“The Arkansas Freedom of Information Act is constitutionally sound, and 44 years since its adoption, it remains one of the strongest laws in the nation for government transparency and accountability,” McDaniel said. “I respectfully disagree with Judge Cox’s decision. Our Office will vigorously defend this validly enacted law before the state Supreme Court. The law is strengthened by the criminal remedies offered within the Act, and prosecutors should continue to have the discretion to pursue violators.”

McDaniel said he will argue that Cox “applied the wrong legal standard” in the decision and that the decision by Cox “was contrary to similar decisions by other courts.”

According to the AG’s statement, he also will ask the appellate court to review Cox’s decision regarding what constitutes an open meeting under the FOIA. At issue in the underlying case is whether Fort Smith city officials violated the FOIA when the city administrator had a series of one-on-one discussions with city directors in 2009.

“Courts have most often taken the position that the Freedom of Information Act should be interpreted broadly toward openness,” McDaniel said. “A broad interpretation in this context is appropriate as well. I look forward to reaffirming the State’s commitment to this Act before the Supreme Court.”