Fort Smith to appeal FOIA ruling in case over emails

February 7, 2018

FORT SMITH, Ark. (AP) — Fort Smith will appeal a ruling that three city directors violated the Arkansas Freedom of Information Act by discussing city business through email.

The city’s Board of Directors voted Tuesday to confirm the filing of a notice of appeal to the Arkansas Supreme Court. City attorney Jerry Canfield filed the notice Jan. 30 to avoid missing the 30-day deadline to appeal the decision by Sebastian County Circuit Judge J. Michael Fitzhugh, according to a memo to directors.

Fitzhugh ruled Jan. 4 that Andre Good, Keith Lau and Mike Lorenz violated the open records act by conducting public meeting business in May and August email exchanges. Fitzhugh also denied the city’s motion for summary judgment in a lawsuit filed by Bruce Wade, who alleged that the emails constituted a public meeting for which public notice should have been given.

“Under the facts of this case, the court concludes that informal meetings subject to the FOIA were held by way of emails,” Fitzhugh wrote in granting a summary motion to Wade. “The purpose of which were to either opine or survey the members as to the demise of the (Civil Service Commission) and/or acceptance/rejection of a settlement. These are clearly matters that should have occurred in a public setting.”

Canfield asked for the dismissal of Wade’s lawsuit because the Arkansas General Assembly expressed no intention that FOIA requirements on public meetings applied to email exchanges.

But Fitzhugh rejected the request, citing a 2004 state Supreme Court decision in which the court ruled that Fort Smith violated the FOIA. In that case, the city administrator polled each director by phone on a proposed bid to purchase land.

“The Supreme Court held that individual contact with board members by the city administrator involving city business without notice to the public constituted an informal board meeting subject to the FOIA,” he wrote.

Wade ran for a spot on the board last year and lost to Good.

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