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Fort Smith judge cites problems with Ark. FOI act

A western Arkansas judge has declared the criminal penalty for violators of the state open records act unconstitutional, saying the Arkansas Supreme Court needed to clarify the law before it could be fully enforced.

FORT SMITH, Ark. (AP) — A western Arkansas judge has declared the criminal penalty for violators of the state open records act unconstitutional, saying the Arkansas Supreme Court needed to clarify the law before it could be fully enforced.

Sebastian County Circuit Judge James Cox rejected a claim that Fort Smith's former city administrator violated the Arkansas Freedom of Information Act by talking privately with members of the board of directors. Instead, Cox called on the Arkansas Legislature to clarify the meaning of a "meeting" under the law so local officials could follow it.

The administrator, Dennis Kelly, had also given the board a memo with a proposal to change city ordinances so he could hire and fire department directors at will. His proposal was eventually tabled.

A local attorney, Joey McCutchen, sued the city in March and asked Cox to declare that the state sunshine law doesn't allow officials to hold a series of individual meetings instead of a regular meeting that's open to the public.

But Cox denied that request and went further, saying the Freedom of Information Act's provision that violators could face a misdemeanor criminal charge — and up to 30 days in jail — violated the U.S. and Arkansas Constitutions.

"In particular, the criminal provision provides no guidance or instructions as to when a member of a subject governing body could be found guilty of violating the provisions, provides no direction as to whether criminal intent is required, and ... leaves uncertain as to when and how a violation might occur by a member of a governing body," Cox wrote in a ruling issued Tuesday.

Arkansas' FOI law was adopted in 1967 and is one of the oldest in the country. In 2004, the Arkansas Supreme Court sided with a retiree, David Harris, who sued Fort Smith after the city administrator secured approval from board members by telephone to buy property at auction to realign a truck route.

The board would approve the purchase in a public meeting. Harris sued after the county prosecutor declined to press criminal charges. The Supreme Court would rule in his favor, but three years later, it refused to order Fort Smith to pay $10,000 for Harris' attorney fees.

After McCutchen sued Fort Smith this year — with Harris as one of the plaintiffs — the city countersued, complaining that the Supreme Court hadn't made it clear whether sending emails, making phone calls or handing out material before a meeting could be considered a violation.

Cox agreed with the city's complaints, saying that the problems were "a matter of public policy for the Arkansas General Assembly."

Arkansas Attorney General Dustin McDaniel did not comment directly on Cox's findings.

"The Attorney General's Office just learned of the ruling today and we are reviewing it," spokesman Aaron Sadler said. "We are considering whether to intervene in the matter."

Both McCutchen and city attorney James Canfield told The Associated Press that they would appeal parts of the ruling.

"The citizens deserve the right to see it all and hear it all," McCutchen said.

Canfield said the city takes extra precautions after the Supreme Court ruled against it. Multiple board members will not attend the same meeting unless it is sanctioned under the state Freedom of Information Act, he said.

 

©2011 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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