Fort Smith attorney Joey McCutchen released the following statement regarding the Arkansas Supreme Court's ludicrous decision today saying the Fort Smith Board of Directors did not violate the Arkansas Freedom of Information Act laws with their backroom politics and egregious email practices:
“The Supreme Court’s decision today will undermine the ability of Arkansans to see and evaluate the actions and performance of public officials, which is extremely detrimental to both transparency and good government,” says Joey McCutchen.
McCutchen stated that he agreed with Justice Josephine Linker Hart’s dissenting opinion, which states, “In the case before us, the email group was established to discuss public business, which the directors obviously did. Today’s majority opinion denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret. Secrecy is poison to democracy.”
McCutchen states that he is pleased that the Supreme Court reaffirmed the holding that an exchange of emails among public officials can constitute a public meeting under the Open Meetings Act.
However, McCutchen adds that the Court's additional description that e-mails that not only contain information but also a recommendation and unsolicited responses creates unneeded ambiguity in the law and will encourage government actors to violate the intent and spirit of FOIA, as noted by Justice Hart.
Justice Hart’s opinion said, “Perhaps unwittingly, the majority has imposed a requirement that to constitute a meeting, an email must: (1) directly solicit a response; (2) render a decision; (3) involve a decision more than three-sevenths of a city’s Board of Directors. Worse yet, these determinations will almost certainly require a lawsuit to resolve.”
In Mayor of El Dorado v. El Dorado Broadcasting Co., 260 Ark. 821, 544 S.W.2d 206 (1976), the Arkansas Supreme Court quoted a California appellate decision in saying that:
". . . An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors . . ."
McCutchen said, “that type of informal conference or caucus is exactly what today’s opinion permits.”
McCutchen noted that the Supreme Court, at least implicitly, overruled 43 years of case law that has been relied upon by lawyers, legal scholars, prosecuting authorities, and others.
“It is a dramatic change in the law,” according to McCutchen.
McCutchen noted that the Arkansas Supreme Court has previously held that there is no difference in the treatment of a formal or informal meeting for purposes of the Open Meetings Act.
“Yet, if all members of the Board of Directors meet in person and discussed what was said in the e-mail exchanges involved here, there would no doubt be a meeting. But, when all seven directors meeting a virtual meeting room, the same communications are somehow magically transformed into something that is not a meeting,” said McCutchen.
McCutchen further states that he will promptly file a Petition for Rehearing and plans to petition the legislature to define a meeting in a way that ensures that public business is performed in an open and public manner as the Supreme Court recommended that the City of Fort Smith do seven years ago.
ความคิดเห็น