Appeal filed in FOIA lawsuit against city of Fort Smith

Fort Smith attorney Joey McCutchen is appealing a decision by Circuit Court Judge Greg Magness that said the city of Fort Smith did not violate the open meetings provision of the Arkansas Freedom of Information Act (FOIA) in action related to a Nov. 16 city board meeting.

McCutchen filed the original lawsuit in Sebastian County Circuit Court Dec. 7 on behalf of Kristen Kitchens alleging the Fort Smith Board of Directors engaged in secret meetings by way of one-on-one conversations between City Clerk Sherri Gard and city directors concerning two proposals related to a 0.75% Sales and Use Tax. The complaint stated the Board of Directors privately rejected a proposal which would have given a percentage of the money collected by the tax to the parks department. According to the complaint, the vote constituted an informal meeting and illegal vote which was not public and for which no notice was given.

Jerry Canfield, attorney for the city of Fort Smith, argued during the trial that the city followed the Fort Smith Municipal Code that states “Any item of business may be denied a place on or removed from the agenda by notice of four directors to the city clerk prior to the date of the meeting of the proposed consideration. The city clerk shall immediately notify the city administrator, the mayor, the directors and other interested persons of such action.”

Magness said in his Dec. 16 ruling that the actions of removing the item from the agenda were in “strict compliance with the Municipal Code.” He also said the court could not find that the plaintiff proved the city had violated FOIA in its proceedings.

McCutchen said Thursday he and attorneys Stephen Napurano and Robert Steinbuch decided to pursue the appeal with the Arkansas Court of Appeals because they believe the open meetings provision of FOIA needs to be protected.

“We think the issue is so fundamental to the open meetings provision of the (Freedom of Information) Act that we didn’t want to wait for the legislature. And we think we are absolutely correct under the law,” McCutchen said.

He also said the Arkansas Legislature “needs to do its job and define what a meeting is in Arkansas,” but until they do he said the courts are the only way to prevent FOIA dilution.

The city was billed more than $13,500 by the Fort Smith-based firm of Daily & Woods to defend against the original lawsuit. Magness recently rejected the city’s bid to recover attorney fees from the plaintiff.