Riff Raff: Transparency is not now in Fort Smith’s possession

Look away now for those of you hoping top personnel changes underway at the city of Fort Smith and recent actions by the Fort Smith Board are leading to more transparency and other cultural changes in city government.

The city is in the midst of a search for a new city administrator. They’ve hired a third-party recruitment company to lead the effort. That company is scheduled to provide on Dec. 29 a list of qualified applicants. I recently placed a Freedom of Information Act request with the city to receive – when the city gets them – documents the third-party firm is set to deliver on Dec. 29. Fort Smith City Clerk Sherri Gard denied the request. Well, she didn’t deny it. She said the decision came from legal – with legal being the law factory of Daily & Woods.

Again, to be clear, the request was for the city to send the documents when they received them.

Technically, the city has the law on its side. Arkansas’ FOIA specifically says governments are only responsible for documents in their possession. Therefore, the city has no legal obligation to honor my request for documents the city is not scheduled to receive until Dec. 29. (And we’ll not even address the fact that the city is scheduling this process during the New Year cycle when fewer folks are paying attention. One might think someone at the city would say, “Hey, why don’t we wait just one week to ensure that more of our citizens are likely to be aware of what we are doing?”)

Technically, the city violates the FOIA law – or at least their interpretation of the spirit of the non-possession portion of the law – several times a month. For example, myself and a long list of media outlets and individuals requested and receive each month from the city documents related to sales tax revenue, building permits, commission agendas, city board agenda, special event notices and so on and so forth. Several years ago I contacted the city and asked to be placed on this media/public distribution list in order to receive the various monthly city reports and other notices. This standing request was to receive documents the city at the time did not have in its possession.

Let’s now present the technical difference in the two requests.
• Request for monthly reports
Me:
Dear city official,
Would you please include me on your media distribution list to receive monthly reports and any other documents sent to the Board of Directors and public?

City official:
Yes.

• Request for one report related to applicants for the top city job
Me:
Dear city official,
Would you please send me the city administrator applicant document(s) you are scheduled to receive on Dec. 29?

City official:
No. The law doesn’t require us to respond to requests for documents not now in our possession.

Technically the difference is that the first request is for distribution of reports not in the city’s possession prior to being placed on the broad media/public list, and the second request is for distribution to just one person of a report not now in the city’s possession. Apparently, the technicality hinges on frequency and how many folks request the report. And maybe the technicality was a function of my request made under the FOIA banner.

Me: If I simply amended my request by dropping the “FOIA” language, would the city provide the information as a matter of courtesy?

City: Nope.

Me: Why not?

City: We don’t have to.

Please know the city’s denial of my request, without context, is not a big deal. We’ll just work harder to keep tabs on the process.

But the denial in context speaks to a culture tone deaf to public relations; a culture unwilling or unable to recognize the benefits of proactive outreach; or worse, a culture unaware it has a transparency deficit. The denial sends a signal that city officials are not interested in making more public awareness convenient with respect to the process to hire a new city administrator – a significant decision for the city’s future.

A progressive and transparent city government might have responded to my request with something like this: “Not only are we going to notify you, but we plan to post the application info immediately to the city’s website and then alert all those on our media/public distribution list. Thanks for your interest in the process and don’t hesitate to call or e-mail if you have other questions.”

Anyone familiar with the city’s past few years of uh-ohs – the short list includes last-minute budget surprises, water true ups, water park costs that balloon from $8 million to just short of $12 million, unwillingness to review the city’s legal fee structure, hand jobs and other issues with the police department, illegal discussions at Board executive sessions, and “private” negotiations with federal officials that resulted in a $480 million sewer system consent order – is not surprised the city would use a technicality to make it difficult to obtain information about those seeking to be the next city administrator.

In other words, this denial is another sad reminder that the city’s trust and transparency problem is systemic – a culture of Why-You-Can’t instead of How-We-Can. Which is to say it will require much more than a few name changes on city office doors to uncluster the dysfunction.