Another FOIA lawsuit filed against city of Fort Smith

Fort Smith Attorney Joey McCutchen filed a lawsuit in Sebastian County Circuit Court against the City of Fort Smith for a Freedom of Information Act violation for the second time in as many months.

The complaint, filed Monday (July 26), follows two separate FOIA requests submitted by McCutchen on July 19 to City Administrator Carl Geffken and Deputy City Administrator Jeff Dingman requesting, in part, information regarding the income and expenditures of the Fort Smith City Sales Tax Fund, a news release said. The City Sales Tax fund is dedicated for the use for city roads, streets and bridges and associated drainage.

McCutchen said Geffken acknowledged receipt of the FOIA requests the same day they were sent and copied city attorneys Jerry Canfield and Colby Roe on the email. When none of the requested documents were provided, and neither Geffken, Dingman, Canfield, nor Roe contacted McCutchen regarding the requests or the need for additional time to provide a response in a timely manner, the lawsuit was filed, the news release said.

Arkansas’ FOIA states that government entities generally have up to three business days to provide a record requested under the FOIA.

Sebastian County Circuit Judge Gunner DeLay ruled June 11 the city was 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.” At the time he ordered the city to pay attorney’s fees and to produce the requested documents.

McCutchen filed that 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 Geffken, Dingman and Canfield. The complaint stated 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.

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 has since sent the requested emails to McCutchen, the attorney said.

“The City has a pattern of refusing to process FOIA requests and produce public records. It’s a misdemeanor to negligently violate FOIA, and I believe that the City’s failure to again produce records not only rises to the level of negligence but also rises to the level of being obstructive. The leading authorities on this issue have said that ‘the purpose of Freedom of Information statutes is access not retaliation,’” McCutchen said.

He added that the lawsuit was filed in front of Circuit Judge Dianna Ladd and he seeks an immediate hearing.