Fort Smith city boss wants to change Arkansas’ FOIA to define ‘meetings’

The city of Fort Smith may have seen a victory last week with the dismissal of a lawsuit alleging violations of the Freedom of Information Act, but the issue for the city is not over as it seeks legislative action to clarify sections of the Arkansas law the city finds ambiguous.

A letter dated Aug. 26 from Fort Smith City Administrator Ray Gosack to Arkansas Attorney General Dustin McDaniel, Rep. Andrea Lea of the State Agencies & Governmental Affairs Committee, Executive Director Tom Larimer of the Arkansas Press Association and Executive Director Don Zimmerman of the Arkansas Municipal League outlines the city's request for clarification through legislative action.

Gosack noted a series of lawsuits leveled against the city regarding violations of the state law regarding open meetings under the FOIA, with some having been successful while others were not.

Gosack’s letter specifically mentioned the case of Harris vs. City of Fort Smith, in which Fort Smith resident David Harris' lawsuit, on an appeal to the Arkansas Supreme Court, said a meeting occurred out of public view. According to the city administrator, the court determined "ten years ago that a public meeting occurred when a non board member contacted the seven members of the Fort Smith Board of Directors one-on-one serially where the 'purpose of the one-on-one meetings was to obtain the decision of the board as a whole' on a substantive issue."

Since then, a variety of other lawsuits have followed in which Gosack said conflicting opinions had been issued and said a lot of the issue rests in the lack of a meeting definition within the FOIA law passed in the 1960s.

"More than 30 other states, plus the District of Columbia, include in their Sunshine Laws a clear and distinct definition for the word 'meeting.' To date, the Arkansas General Assembly has failed to provide that definition and, as a consequence, the Arkansas Supreme Court, on a case-by-base basis, has determined whether a specific set of facts presented to it constitutes a 'meeting' under the FOIA."

He said as a result, the state Supreme Court is having to decide what constitutes a meeting on a "case-by-case basis." Gosack also said the definition of a meeting should not change based on "ever changing sets of facts and ensuing court decisions."

"… The Arkansas Freedom of Information Act has provided a great public service and benefit to the people of Arkansas. However, the uncertainty created by the lack of definition of 'meeting' poses a significant constitutional risk to the public benefit of the FOIA's requirement of open public meetings," Gosack wrote.

One of those addressed in the letter, Rep. Andrea Lea, R-Russellville, said she could not recall specific details of the letter but said she has always erred on the side of transparency during her three terms in the Arkansas House of Representatives. Lea, who is the Republican nominee for Arkansas state auditor, did not recall the matter of Fort Smith's request for an update to the Arkansas Freedom of Information Act being addressed with other members of the governmental affairs committee who will continue service in the General Assembly in 2015 and said she had referred the letter to local Fort Smith legislators.

Sen. Jake Files, R-Fort Smith, said he was familiar with Fort Smith's previous lawsuits alleging FOIA violations and said questions regarding FOIA are common during each legislative session.

"Each session, there are different things that come up as it relates to FOIA," he said. "What I would like to see is more transparency and more openness as it relates to local governments across the (state)."

Files said the issue of an open and transparent government "will be considered with each request," though he did not confirm that he would pursue legislative action at the request of the city.

"I'm interested to get to the bottom of it, but (the legislature must) be careful that whatever is proposed doesn't limit the citizen's access to information."

Gosack's letter said while the city wants a firm definition of a meeting, "(the) City of Fort Smith does not have a predetermined position as to the full extent of the definition of public meetings …"

"I respectfully urge that our respective offices and organizations accept the responsibility to provide leadership in addressing this issue with the Arkansas General Assembly," he added.