Attorney says Fort Smith ‘has long history of compliance to FOIA’ amid pending lawsuit

Fort Smith City Attorney Jerry Canfield said at a Tuesday (Oct. 31) study session that city government had “a long history of compliance” with the Arkansas Freedom of Information Act (FOIA) amid pending litigation from city-based attorney Joey McCutchen that asserts violations.

Canfield acknowledged the city’s earlier FOIA violation in the 2004 case of David Harris vs. The City of Fort Smith in which city officials had conducted a series of “serial” meetings to reach a determination on bidding for land at public auction. But, for Canfield, “The language I think is important because it gives us an understanding of where we are in this process.”

Reading from the decision of a 2012 case in which the Arkansas Supreme Court ruled in the city’s favor regarding another FOIA violation case brought by McCutchen, Canfield said, “The facts of the present case (McCutchen) are distinguishable from the facts of Harris. In Harris, the one-on-one meetings between the city administrator and board members ran afoul of the FOIA because the purpose of the meeting was to obtain approval of action to be taken by the Board as a whole. In that case, the city administrator contacted Board members to determine whether the Board would approve the purchase of land at a subsequent meeting if he were to make a successful bid in public auction. In this case, the purpose of (former City Administrator Dennis) Kelly’s memorandum was to provide background information on an issue that would be discussed at an upcoming study session.”

“So the court draws the distinction between providing premeeting sharing of background information and premeeting making a decision by serial contact,” Canfield explained, adding that “since there is no definition (of meeting) in the (FOIA) act, that doesn’t answer all the questions.”

“In the (previous) McCutchen case, Board members exchanged no correspondence on the memorandum. What if we go to an email situation where it is circulated among the Board members? Is the issue controlled by this background sharing of information not meeting the distinction, or is it controlled by Board members can’t share any information even by email? That is presumably the question that will be answered in the current litigation the city is involved in,” Canfield said.

McCutchen’s latest suit against the city came after an email string launched by City Director André Good complained about the civil service commission’s refusal to take up a hiring request from Fort Smith Police Chief Nathaniel Clark. The complaint alleges that Good sent an e-mail to City Administrator Carl Geffken on May 23 noting that “progress will not happen as long as this closed system persists” after the request to hire upper management from outside the department died for lack of motion.

McCutchen asks in the complaint that the court stop city officials from “conducting public business through a series of emails without providing the public with notice of the emails and giving the public the opportunity to provide input in the emails.” McCutchen told Talk Business & Politics in a previous interview he found it “bizarre and a bit arrogant” the city has yet to respond to his settlement offer after being given multiple chances to do so and in spite “of how many hundreds of thousands of dollars this might cost the taxpayers of Fort Smith.”

Of the 2012 case, McCutchen said the court told the city “if they wanted the definition of a meeting, they should approach the legislature.”

“They’ve let three legislative sessions pass and haven’t asked a legislator to bring legislation on the issue, so they obviously aren’t concerned enough about it.”

McCutchen said his next steps will include pushing for discovery and a motion for summary judgment at the circuit court level. He hopes to have the case in court before the end of the year.