Court filing seeks to vacate FOIA ruling against the city of Fort Smith

The city of Fort Smith on Tuesday (Aug. 6) filed a letter with Sebastian County Circuit Court Judge Michael Fitzhugh to follow an Arkansas Supreme Court ruling that reversed Judge Fitzhugh’s previous ruling against the city in a Freedom of Information Act case.

Fort Smith resident Bruce Wade, represented by attorney Joey McCutchen, sued the city in 2017 claiming emails between several city directors about the employment practices of Fort Smith Police Chief Nathaniel Clark violated the open meeting rules within the FOIA. The emails centered on Clark’s desire to amend rules of the Civil Service Commission (CSC) to allow hiring and/or appointment of officer positions to include external applicants, a decision opposed by the Fraternal Order of Police (FOP) that was allowed to die for lack of motions at the commission’s May 22 meeting.

On Jan. 5, 2018, Judge Fitzhugh said the series of emails written in May and August of 2017 between board members and City Administrator Carl Geffken were in violation of FOIA. Judge Fitzhugh ruled in favor of Wade, noting that “Under the facts of this case the Court concludes that informal meetings subject to the FOIA were held by way of emails. The purpose of which was to either opine or survey the members as to the demise of the CSC and/or acceptance/rejection of a settlement.”

However, on June 20 the Arkansas Supreme Court agreed with the city that the content of the emails did not violate the FOIA because “no response was solicited.” The court said the email exchanges “contain information, a recommendation, and unsolicited responses with no decision.” The court also said the board discussed the issue and took action in public meetings.

The court decision was not unanimous. Justices Josephine Hart, Shawn Womack, Rhonda Wood, and Robin Wynne did not agree with the decision to reverse the Circuit Court ruling.

Tuesday’s filing, made by attorney Jerry Canfield on behalf of the city, asks Fitzhugh to sign a document that would vacate and set aside his previous injunction against the city with respect to “conducting public business through email.” The filing also seeks $2,622 in fees from Wade.

McCutchen filed a separate motion Tuesday opposing the request to seek fees from Wade.

“This order to assess costs by the Supreme Court punishes people for filing suits to protect their rights and deters ordinary citizens from filing suits to protect their rights under the Arkansas Freedom of Information Act. What ordinary citizen would file a suit if they felt that there was the potential to pay $2,682.25 in costs if they are unsuccessful?” McCutchen said in a note to Talk Business & Politics.