The state of ‘open public meetings’ law after

94th General Session

The General Session of the 94th General Assembly was full of hot-button issues, but maybe none so polarizing as the bills filed to amend the Freedom of Information Act (FOIA). The Arkansas FOIA, initially passed in February 1967, ensures that Arkansas citizens have access to public records and that “public meetings” are held in a way that they are transparent and open to the public. While there was a wide range of different views among legislators and citizens regarding if and how Arkansas FOIA should be amended, there was one statement nearly everyone on both sides could agree on — Arkansas’s public meeting laws are confusing — and confused citizens become angry citizens. An ambiguous statutory scheme combined with decades of Arkansas Supreme Court case law attempting to interpret the statutes leaves even the “experts” disagreeing on what does or does not constitute a “public meeting” in Arkansas.

Arkansas Code § 25-19-103(6) defines “public meeting” as “the meetings of any bureau, commission, or agency of the state or any political subdivision of the state, including municipalities and counties, boards of education, and other boards, bureaus, commissions, or organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds.” As an attorney, nothing frustrates me more than a definition that defines a word using the word itself. The definitions section of FOIA is silent on what a “meeting” is.

The next step is to look to Arkansas Code § 25-19-106, entitled “Open public meetings — Exceptions:”

(a) Except as otherwise specifically provided by 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, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.

Once again, the code fails to define what a “meeting” is. This section refers to “all meetings … of the governing bodies” of all qualifying entities. Is a meeting of a governing body a quorum of the body that can conduct business? Two members, three members? For 56 years, this question has remained unanswered by Arkansas law. However, the Arkansas Supreme Court has provided tidbits of clarity over the years that are worth noting.

The first open meetings case to reach the Arkansas Supreme

Court after the passage of FOIA was a mere year after its passage. In 1968, the Court ruled in Laman v. McCord that the North Little Rock city council violated the open public meetings portion of the Act when the full council met with its attorney behind closed doors to discuss a Public Service Commission proceeding to which the city was a party. A few years later, the Court ruled that committee meetings were meetings subject to FOIA “[w]hen a committee of a board meets for the transaction of business.” Arkansas Gazette Co. v. Pickens (1975).

LINDSEY FRENCH General Counsel

One year after Pickens, the Court ruled in Mayor and City Council of El Dorado v. El Dorado Broadcasting Company. The Court distinguished between “unofficial group meetings for the discussion of governmental business,” which it said were subject to FOIA, as opposed to “those contacts by the individual members that occur in the daily lives of every public official,” which are not subject to FOIA. The Court went on to state: “we do not interpret the trial court’s judgment as applying the Freedom of Information Act to a chance meeting or even a planned meeting of any two members of the city council. By its very terms the trial court’s order applies only to those group meetings such as the facts here showed — i.e. any group meeting called by the mayor or any member of the city council at which members in the city council, less in number than a quorum, meet for the purpose of discussion or taking any action on any matter on which foreseeable action will be taken by the city council.” Two justices authored dissents, pointing out that the ruling seemed to contradict itself — opining that the ruling applied only to the facts at hand (a group meeting called by a mayor or member of the council to discuss city business), but also that FOIA “was intended to cover informal but unofficial group meetings for the discussion of county business.” The Court’s ambiguous opinion left not only the justices confused, but Arkansas citizens as well.

For the sake of brevity, I’ll skip forward to 2004, when the Arkansas Supreme Court ruled in Harris v. City of Fort Smith. In this important case, the Court ruled that one-on-one meetings between the city administrator and members of the city board of directors, “by which the board approved bidding on the property, as well as bid amounts, constituted a Board meeting subject to the FOIA” (emphasis added). In its opinion, the Court specifically ruled that one-on-one meetings for the purpose of obtaining a decision of the board was in violation of FOIA and was distinguishable from “a meeting of two” as discussed in El Dorado. This case made clear that one-on-one meetings polling members of a governing body could not be used in place of a formal meeting in order to usurp the public meeting requirements of FOIA.

Several years later in 2012, the Court heard McCutchen v. City of Fort Smith, after the city administrator presented a memorandum expressing his opinion on a proposed ordinance to individual members of the city’s board of directors in advance of a public study session. In the memo, the city administrator recommended that board members pass the proposed ordinance, and subsequently, some members voluntarily stated their positions to the city administrator. However, responses were not solicited, and there was no evidence that discussion over the matter took place before the public meeting. Therefore, the Court ruled that no violation of the openmeetings provision of FOIA occurred.

Finally, in 2019 the Court took up the matter of City of Fort Smith v. Wade. Fort Smith citizen Bruce Wade filed suit against the city board of directors alleging that they and the city administrator exchanged emails related to city business. However, the Court was not persuaded by Wade’s arguments. A brief factual background regarding the subject emails is helpful to understand the Court’s ruling: There was an email group consisting of the city directors and administrator. One director sent an email to the group regarding upcoming issues focused on the performance of a newly appointed police chief. The city administrator sent a subsequent email to the group regarding the police department’s hiring policy along with his opinion on the matter. Two directors responded that they agreed with the administrator. The group sent more emails in the following days, including one by the city administrator giving the board “four possible options” of action, to which two directors responded. The proposed changes were discussed at length at an open public board meeting where a non-binding action was taken in favor of the police chief’s proposal.

The Court held that while email communications could constitute a meeting subject to FOIA, like telephone polling or serial third-party contact used to obtain approval of an action, the emails in this case did not constitute a meeting. The Court ruled that the emails provided background information and shared “non-decisional” information. As in McCutchen, the Court stated that no responses were solicited, no decision was made, and the proposal was properly discussed at the board’s subsequent public meeting. Although the administrator sent his recommendations on the proposal and received three unsolicited responses, the Court found that the communications in this case did not violate the open-meeting provisions of FOIA.

So, what is the status of open public meetings law in Arkansas? Frustrated by the lack of absolute clarity of what constitutes a meeting, Arkansas lawmakers attempted to define a “public meeting” in the recent legislative session. Sen. Alan Clark filed SB382, which would have made virtually any interaction between two members of a governing body other than “a chance interaction” a public meeting, regardless of the topic of discussion, and not exempting social gatherings, athletic events, church gatherings, etc. On the other end of the spectrum, Rep. Mary Bentley filed HB1610, which would have defined a public meeting as “a quorum of” a governing body, later being amended to “no more than one-third” of a governing body. Both bills failed to pass out of the Senate.

As a result, Arkansans are left with a vague statutory definition and a body of case law that has set some shifting parameters. Telephone polling and serial one-on-one meetings soliciting responses for the purposes of subverting a public meeting are clearly a violation of FOIA open public meetings law. However, emails (and it would reason to infer other types of communications) between members of a governing body that are informational only and do not solicit responses about how to vote on a topic are not a violation of FOIA, according to the Arkansas Supreme Court in 2019. Until the General Assembly sees fit to amend the definition of “public meeting,” members of a governing body should rely on the law set by the Arkansas Supreme Court and stay within the parameters of the few circumstances that have been adjudicated.

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