Judge DeLay rules city of Fort Smith in violation of FOIA

Sebastian County Circuit Judge Gunner DeLay ruled Friday (June 11) the City of Fort Smith is in violation of the Arkansas Freedom of Information Act (FOIA) by not providing Fort Smith Attorney Joey McCutchen emails received by the Fort Smith “Board of Director Email Group.”

McCutchen filed the lawsuit in Sebastian County Circuit Court June 4. On May 27, McCutchen requested all emails sent or received by the Fort Smith “Board of Director Email Group” from May 1, 2020, to present. He emailed the request to City Administrator Carl Geffken, Deputy City Administrator Jeff Dingman, and City Attorney Jerry Canfield. The complaint states that none of the recipients responded to the request or to a subsequent request sent June 3 notifying the recipients they had failed to respond to his request in a timely manner. Arkansas’ FOIA states that government entities generally have up to three business days to provide a record requested under the FOIA.

Attorney Colby Roe filed a Motion for Summary Judgment June 10, claiming the contents of the “Board of Director Email Group” are not considered public records. DeLay ruled otherwise. McCutchen also received notice June 10 that his request would not be fulfilled.

McCutchen said the court decided that an email account cannot send emails, so a request for all emails sent from the account was not valid, but all emails received in the email group were subject to FOIA.

“The City thumbed its nose at our request for the contents of this email group. As citizens, we need to ensure that our City is not discussing public business and making decisions without giving notice to the public as it did by non-transparently removing flags from Riverfront Park,” McCutchen said at the time of the lawsuit.

He said Friday he hopes the ruling sends a message to the city that it is very important that they are open and transparent with the public.

The lawsuit was filed one day after McCutchen filed a lawsuit against the city. On June 3, He filed a lawsuit in Sebastian County Circuit Court seeking a declaratory judgment that the City of Fort Smith violated the Arkansas State Capitol and Historical Monument Protection Act when it removed the historical flag display and bronze markers from Riverfront Park in Fort Smith.

In October 2001, the city erected seven flags at Riverfront Park, 121 Riverfront Drive, representing the flags flown over Fort Smith since 1699. The flags included: The French Fleur-De-Lis flag; the Spanish Cross of Lorraine flag; the French tricolor flag; the U.S. flag with 15 stars; the U.S. flag with 20 stars; the U.S. flag with 24 stars; and the Confederate States of America flag depicting a circle of seven stars with red and white stripes. Brass markers identifying each flag were on the base of the flag poles.

In April 2020, the city removed the flags due to age and condition, a letter from Colby Roe of Daily and Woods law firm states.

“At some point after the flags’ removal, the brass markers were removed. The display has not existed since the removal,” the letter states.

McCutchen is asking for an order compelling the city to immediately replace the flags and markers and enjoin future violations of the act, he said in a news release Thursday.

“The removal of the historical flag display and bronze markers identifying each flag was done without transparency or input from Fort Smith citizens. Fort Smith history is important and must be protected and preserved,” McCutchen said. “The city has made it abundantly clear that they are not going to replace the historic flags and bronze markers and are not going to voluntarily comply with The Arkansas Capitol and Historic Monument Protection Act.”

In the May 25th letter to Geffken, Roe states he has reviewed Act 1003 and he has “serious doubts as to whether the Riverfront Park flag display would be characterized as a ‘historical monument’ under the Act.”

“We do not believe it to have been ‘installed, erected for, or named or dedicated in honor of a historical person, historical event, public service organization, firefighter, police officer, military organization, or military unit,’” the letter said. “However, assuming for the sake of argument that the flag display could have been once characterized as a ‘historical monument,’ we do not think the Act applies in any event.”

Because the flags were removed in April 2020, there was no “historical monument” in place at the time Act 1003 went into effect, April 28, the letter states.

City Administrator Carl Geffken has said that flags representing the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard and perhaps Space Force will fly next to the United States flag at the park where the other flags previously flew.

“Our focus is on the positive energy developing from the U.S. Air Force’s recent selection of Fort Smith as the best city in the nation to site their long-term pilot training center. This exciting news brings an unparalleled economic impact to our community and swells our hearts with patriotic pride today. Ironically, the timing could not be better as the City puts the finishing touches on plans to commemorate our military forces with a military flag display at Fort Smith’s Riverfront Pavilion overlooking our beloved Arkansas River,” said Shari Cooper, Fort Smith’s public relations and communications manager.

McCutchen said while he commends the city on their proposal to honor veterans and troops by raising United States military flags “they cannot do so by unlawfully displacing another historical flag display.”

On June 3, it was announced that Ebbing Air National Guard Base in Fort Smith, home of the 188th Wing, was selected by acting Secretary of the Air Force John Roth to be the long-term pilot training center supporting F-16 and F-35 fighter planes purchased by Singapore, Switzerland and other countries participating in the Foreign Military Sales (FMS) program.