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Legal Corner
Public meetings under FOIA: Can we talk about that?
The state of Arkansas touts one of (if not the) toughest, most comprehensive Freedom of Information Acts (FOIA) in the country. Adopted on Feb. 14, 1967, and amended numerous times since, the 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. This article will focus on the latter.
ACA 25-19-106(a) mandates that, absent an exception in the 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 organizations of the State of Arkansas, . . . supported wholly or in part by public funds or expending public funds, shall be public meetings.” The law then sets forth certain public notification requirements 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 Arkansas 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 “meeting” 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 undoubtedly 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. The 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 quorum 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 governing body can be subject to FOIA. It need not involve a quorum, 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 discussed need not be an item listed on the next meeting’s, or any upcoming meeting’s, agenda to be subject 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 discussion to the public meeting provisions of FOIA. The court’s strong language in this case makes the discussion of current or potential future county business between two or more quorum court members clear cut — it must comply with FOIA public meeting provisions.
“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 Supreme 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. The 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. The court said that the use of the city administrator 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. Therefore, 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 business 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 administrator 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-
Legal Corner
LINDSEY BAILEY General Counsel
FOIA
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randum, draft ordinance, and “other documents” to five out of seven board members before a “study session” of the board, “at which the proposed ordinance would be discussed but not voted on.” Although approval was not solicited by the city administrator, upon the memorandum’s delivery, two members expressed their favor for the ordinance, and two expressed disfavor. The ordinance was discussed at the subsequent study session, but was never placed on the agenda of a regular meeting for a vote.
McCutchen alleged that the city administrator held a series of private individual meetings with board members to attempt to influence their decisions about this proposed ordinance, in knowing violation of Arkansas FOIA public meeting provisions. However, the court held that although the memorandum contained a draft of the proposed ordinance, went as far as to recommend approval of the ordinance, and even though some board members offered their opinion regarding the ordinance, the city administrator had not polled the members or attempted to “obtain approval of action to be taken by the Board as a whole.” Rather, the court found that in McCutchen, the purpose of distributing the memorandum was to “provide background information on an issue that would be discussed at an upcoming study session,” noting that there was no evidence that the issue was debated or further discussed prior to the public study session and also no evidence that the board members ever discussed the issue among one another prior to the study session.
Like the Harris ruling, the McCutchen ruling would likely be applied similarly to a county judge/quorum court member situation. Therefore, after the McCutchen ruling, the clear law set forth by the Arkansas Supreme Court concerning communications outside of a public meeting between a county judge and quorum court members are:
• A county judge may not privately “poll” or seek approval or disapproval over a matter of business that will be before the quorum court for a vote, even if this polling is done on a one-on-one basis. This situation would be subject to the
FOIA public meeting provisions.
• It is permissible for a county judge to disseminate background information to quorum court members on a matter that will be before them for study purposes only, but not to poll, debate or further discuss the matter outside of a proper public meeting.
There are several instances that fall in between these two situations that the court has not yet specifically addressed, for example: whether in McCutchen the court might have found a FOIA violation if the matter had been one coming before the board for a vote rather than merely a non-voting study session. The clear lines regarding communications between a quorum court member and county judge have been drawn, while leaving plenty of room for gray-area interpretation in between.
“Meetings” Involving Various County or District Elected Officials
As a general rule, the Attorney General’s office has opined in AG Opinion 97-202 that meetings involving various countywide elected officials, such as a meeting between the county judge, sheriff, circuit clerk, county clerk and assessor would not be subject to FOIA public meeting provisions. This is because this collection of officials does not make up any “governing body.” However, that group of officials could subject themselves to FOIA if the group had some actual decision-making authority, they “merely rubber-stamp the recommendations of a committee,” or more than one member of a represented governing body are at the meeting and discuss official business on which the governing body might foreseeably take action.
Regarding quorum court members, this means that generally, a quorum court member discussing county business one-on-one with a countywide elected official (other than the county judge) would not be subject to FOIA public meeting provisions. However, a meeting involving two members of the quorum court and another countywide elected official probably would be subject to FOIA if the matter was one that would foreseeably come before the quorum court for their action.
In conclusion, I leave you with my general advice on most any county government matter: it is better to be safe than sorry. If you have a question about whether a communication might be subject to FOIA public meeting provisions, call your county attorney and ask him or her — particularly if your county attorney is also a prosecutor, the party who brings FOIA lawsuits. Former Attorney General Dustin McDaniel named access to information in an open and public government “one of the hallmarks of a democratic society.” By following these few guidelines set by the Arkansas legislature and the courts, and avoiding the gray areas in between, we can all preserve the intention and integrity of “the people’s law.”
* The most recent Arkansas Freedom of Information Handbook can be obtained through the Arkansas Attorney General’s office, either in hard copy or electronic form.
