AAC F A M I L Y & F R I E N D S
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law remains strongly in favor of government transparency and widespread public access to governmental or public information. Arkansas FOIA focuses primarily on two areas: public access to public records and public access to meetings of governing bodies. Tis article will focus on the latter. ACA 25-19-106(a) mandates that, absent an exception in the
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law, “all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or orga- nizations of the State of Arkansas, . . . supported wholly or in part by public funds or expending public funds, shall be public meetings.” Te law then sets forth certain public notification re- quirements for these meetings and carves out some very limited exceptions for private “executive sessions,” mostly for certain personnel-type issues. Where county government is concerned, most meetings of a governing body under the purview of Arkan- sas FOIA involve members of the quorum court, the county’s legislative body. Because certain provisions of Arkansas FOIA are fairly vague as written, the Arkansas courts have inserted their opinions as law in these ambiguous situations. One common question the courts have faced is exactly what constitutes a “meet- ing” of a governing body.
“Meetings” Involving More than One Quorum Court Member
It is well-settled that whether in person, over the phone, via e-mail or otherwise, the correspondence of one quorum court member with one or more other quorum court members can constitute a “meeting” that must be made public under FOIA. In El Dorado v. El Dorado Broadcasting Co. (1976), the Arkansas Supreme Court reasoned that ACA 25-19-106(a) was undoubt- edly intended to cover “informal but unofficial group meetings for the discussion of governmental business” as opposed to the everyday interactions that occur in every public official’s life. Te court went on to say that FOIA applied to “any group meeting called by the mayor or any member of the city council [also being equally applicable to the county judge or any member of the quo- rum court] at which members of the city council, less in number than a quorum meet for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken by the city council.” Two points are worth noting: first, the court effectively ruled that any discussion involving more than one member of a gov- erning body can be subject to FOIA. It need not involve a quo- rum, or a committee — a phone or in-person discussion between two quorum court members can constitute a meeting subject to FOIA. Second, as between quorum court members, the matter
COUNTY LINES, WINTER 2016
Public meetings under FOIA: Can we talk about that?
he state of Arkansas touts one of (if not the) tough- est, most comprehensive Freedom of Information Acts (FOIA) in the country. Adopted on Feb. 14, 1967, and amended numerous times since, the
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discussed need not be an item listed on the next meeting’s, or any up- coming meeting’s, agenda to be sub- ject to FOIA. Any matter “on which foreseeable action will be taken,” or any matter that the quorum court will likely address by a vote in the future, is enough to subject the dis- cussion to the public meeting pro- visions of FOIA. Te court’s strong language in this case makes the dis- cussion of current or potential fu- ture county business between two or more quorum court members clear cut — it must comply with FOIA public meeting provisions.
LINDSEY BAILEY General Counsel
“Meetings” Involving the County Judge and an Individual Quorum Court Member
Less clear is the blurred line at which a discussion between a county judge and single quorum court member becomes subject to FOIA public meeting provisions. In 2004, the Arkansas Su- preme Court took up a FOIA case, Harris v. City of Fort Smith, when a city administrator learned that certain property was to be auctioned and contacted each city board member individually to “poll” the members of their approval or disapproval of the city purchasing the property. Te court held that this one-on-one polling by a city administrator of city board members constituted meetings that should have been subject to FOIA public meeting provisions. Te court said that the use of the city administra- tor as an intermediary for communications between city board members did not alter the actual character of the work, to reach a decision of the board. While Harris focused on the communications between a city administrator and city board members, a reasonable parallel can be made to communications between a county judge, who presides over the quorum court, and member(s) of the county quorum court and a county judge. Terefore, an Arkansas court would likely rule that a county judge communicating with one or more quorum court members for the purpose of “polling” them or gauging approval of a particular matter of county busi- ness would be subject to FOIA public meeting provisions. On the other hand, in 2012, the Arkansas Supreme Court handed down a ruling in McCutchen v. City of Fort Smith that somewhat narrowed the standard set forth in Harris. Like Harris, McCutchen also dealt with communications between a city ad- ministrator and individual city board members. However, unlike the situation in Harris, the communications in McCutchen did not include any kind of polling of the board members or seeking of their approval. Instead, the city administrator issued a memo-
See “FOIA” on Page 18 >>> 17
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