FOIA in Fort Smith is almost DOA, Part II

by Michael Tilley ([email protected]) 1,323 views 

We noted a few days ago in Part I of this essay the city of Fort Smith’s regard – or disregard – for the state’s Freedom of Information Act (FOIA). It’s not a stretch to wonder if the city believes FOIA is an acronym for Frequent Obfuscation to Information Access.

In that first essay we mentioned a few examples of how the city has for decades now treated the FOIA as a suggestion rather than law. Let’s include among the examples the ongoing appeal by the city to a lawsuit brought by Fort Smith attorney Joey McCutchen, who sued the city because they were conducting business via e-mail between directors. Sebastian County Circuit Judge Michael Fitzhugh ruled earlier this year that city officials and board members violated the law in discussing via e-mail matter related to the Fort Smith Civil Service Commission (CSC).

“These are clearly matters that should have occurred in a public setting,” the judge noted.

But city attorney Jerry Canfield with the Daily & Woods law firm convinced the board the definition of a “meeting” is unclear, and thus the board voted to appeal the ruling. This case could cost the city upwards of $50,000, with Daily & Woods receiving much of that taxpayer money.

And then there were the hide-the-ball games Talk Business & Politics endured when trying to get to the bottom of the recycling-not-recycling saga. Y’all may remember the time when the city for months ran recycling routes but was taking materials to the landfill. If it weren’t for a Clarksville business owner spilling the beans we may not have ever learned the full extent of the deception. The city fired the sanitation director to protect city officials responsible for initiating the deception.

The city’s auditor likes to hold meetings with short notice to the media, no agenda, and no documents related to what is discussed at the meeting. The auditor told Talk Business there were no documents about a certain meeting in question. However, a city director told Talk Business & Politics he received documents related to the agenda prior to the meeting. Repeated attempts to get written responses from the auditor were unsuccessful. She instead wanted to “chat” by phone, because “some things you might think are notes and documents that I don’t consider as notes and documents.” Should not admit this, but I gave up on this issue. We’ll watch future behavior, however.

More recently there is the interaction with the city’s new communication manager. My FOIA request was for legal filings from defendants and plaintiffs related to two lawsuits in which the city is involved. The manager said the Sebastian County Circuit Court and not the city is the custodian of those records. To add condescension to rejection, she said she was surprised someone with my experience in journalism didn’t understand the FOIA “custodian” rule.

My e-mail response to the rejection via phone included these notes:
• According to Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004), the definition of “public record” in the Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 (2002) et seq., does not require that the custodian be the person who actually keeps the document, nor does it say that the custodian must be required to keep the document.

• Under the Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 et seq. (2002), one who has administrative control (and is therefore a custodian) is that public official or employee who is charged with the responsibility to manage or execute the public affairs or conduct of their office, department or agency.

Condescension gave way to acquiescence. But the games didn’t stop. She said she was unable to e-mail the files, so she put them on a CD for me to retrieve at the city office. (A CD? Remember CDs? They were cool for a few years after cassette tapes. Do we need to get an old Beta player for the next FOIA request?) The files on the CD were a combined 12.5 megabytes. The city’s IT guy assured me the city’s system could easily handle e-mailing the files.

Arkansas FOIA law notes: “Reasonable access to public records and reasonable comforts and facilities for the full exercise of the right to inspect and copy those records shall not be denied to any citizen.”

The squabbles, large and small, with Fort Smith city government were once considered a normal part of the routine. But when this media company expanded and we began to deal with other governments around the state, it became clear Fort Smith was an exception. We rarely make FOIA requests of other governments because their upfront transparency makes it unnecessary, or they reply without contest to non-legalese requests, or they aren’t doing stuff that raises red flags. And these are governments with seemingly capable leadership often managing substantive growth and change in their communities.

Naive hopes of transparency with the city were noted in the first essay. To be sure, I am no longer naive. The two essays about this issue were intended to give you, Kind Reader, a basic accounting of what the media/public often encounter with the city, and is by no means a complete list of frustrations.

Also, the two essays will likely do nothing to immune the city from its allergy to transparency. City leaders consistently avoid transparency, and have a reputation statewide for playing hide the ball. No matter the board makeup or city staff leadership, the default is too many times on deny, delay and/or disinform. The common element these many years is the city’s law firm, Daily & Woods.

You, Kind Reader, also should know that often we at Talk Business & Politics were too easily frustrated with the city’s tactics and would simply give up.

Those days are over.