After Sebastian County prosecutor Daniel Shue admonished three city directors and the city administrator on Monday for violations of the Arkansas Freedom of Information Act an exchange of letters between Fort Smith city attorney Jerry Canfield on Wednesday clearly shows several points of contention between the two lawyers concerning the matter.
Following an investigation by the Sebastian County Sheriff Office in which one director maintained no FOIA law was broken and he would handle matters in exactly the same way given the opportunity, Shue sent a letter to the Fort Smith board of directors confirming the violations.
Director’s Mike Lorenz, Keith Lau and Andre’ Good were all named in the second of two lawsuits filed in the matter by attorney Joey McCutchen. McCutchen started he had filed he second lawsuit against he directors individually so they, and not the city, would be responsible for their own legal fees but Canfield obviously responded to Shue’s letter on behalf of the city and the board of directors.
Because the SCSO did not advise prosecution in the matter, all parties came out of the fray basically unscathed but not without a warning that any future violations wouldn’t go unpunished.
Members of the board and the city administrator were seemingly still defiant after the statement from Shue.
Director Mike Lorenz told a local television station “I really don’t believe there was a violation there, [the] prosecutor disagreed with us of course there’s still two pending court cases that will go before a judge and we’ll see what the outcome is there,”
Director Lau, who was not questioned by investigators, attempted to distance himself from the violations saying “What I did was a little bit different. I responded back to an email from Carl Gefken and I responded all and two of the city directors and Joey (McCutchen) and now I guess the prosecuting attorney thought that was a violation of the FOI.”
City administrator Carl Gefken told investigator the felt the Arkansas Freedom of Information was ridiculous and that the “unintended impact would be that Fort Smith has less and less qualified people who are willing to put themselves out on the line to do the work and I came from Reading, Pennsylvania and they are already many, many steps ahead of where Fort Smith is” in hiring qualified people.
Canfield hand-delivered a three-page letter to Shue on Wednesday that read in part:
“On behalf of the Mayor and he Board of Directors of he City of Fort Smith (“City”) we acknowledge receipt of your letter of August 28, 2017. The City respectfully disagrees with your opinion stated on the second page of your letter that the two exchanges of email communications you described constituted “meetings” in violation of the FOIA.”
Canfield then stated several opinions about Shue’s finding, citing opinions and court cases in an effort to deflect the guilt of the directors.
Canfield contended:
• That neither the Arkansas General Assembly nor Arkansas appellate courts had ever stated or suggested that a “meeting” for the purposes of FOIA can occur by electronic email
• That none of the scores of Arkansas appellate court decision on the matter had ever held so
• That the FOIA was adopted in 1967 before the advent of email
• That the emails in question didn’t violate the “public’s right to observe” because after the violations board members discussed the subject of the emails in a public meeting
• That all the information in the emails was merely “pre-meeting information sharing”
• That directors were exercising “freedom of speech”” in their emails in which the “back and forth was informative” and that Shue’s decision “chills constitutionally protected free speech and stigmatizes locally elected officials and professional administrators”
• That testimony Shue had given in a previous case involving McCutchen and the City “acknowledged the absence of the definition of a “meeting” and called into question a statement made by Shue in that testimony that it would be “darn difficult” for the members of the BOD to know what constituted meeting under FOIA laws
Shue replied with a four-page letter of his own a counterpoint also citing numerous points of case law that affirmed his opinion:
“I want to acknowledge receipt of your letter dated August 29, 2017 which was hand delivered to my office. I have read and reviewed your letter and I believe a couple of things require a response”.
Shue’s counterpoints included:
• That the Canfield letter ignored fifty years of development of the legal term “meetings” since the FOIA passed in 1967
• That the FOIA does not attempt to give an exact description of every conceivable fact situation that that might give rise to the application of the FOIA
• That is left to the judiciary to give effect to the intent of the legislature
• That a judgement in a previous FOIA lawsuit before Judge Steve Tabor that stated email exchanges were a “meeting” that was not appealed set “persuasive authority and precedent”
• That Canfield contention that there was no evidence that board members exchanged any correspondence about he memorandum in question was moot based upon the fact that the BOD members had sent emails to each other that were the subject of the entire investigation
• That the issue wasn’t the exchange of information but the “polling’ that occurred in the exchanges
• That the Supreme Court of the state had already rejected he notion that the application of the FOIA violated constitutional free speech
• That Canfield had twisted his words in the aforementioned testimony in which Shue had replied to a question about the ability of the “public” to know what constitutes a “meeting”.
From the transcript of that trial comes the following exchange:
“Mr. Canfield: How is it that a member of the public is supposed to
know what a meeting is?
Mr. Shue : Be darn difficult to do.
Mr. Canfield: That include the members of the Fort Smith Board of
Directors, doesn’t it?
Mr. Shue: Possibly.”
• That the “pre-meeting procedure” discouraged full participation by all board members
• That because it could be “darn difficult” to define a “meeting” is the reason is the reason he sent letter of admonishment instead of following through with prosecution
• That he agreed with the report from the SCSO that “FOIA training still seems to be relevant to the the issue at hand”
According to one source, that training has been scheduled for late September.
McCutchen had earlier offered to rescind both lawsuits he had filed in the matter if the City and board members would admit their guilt and pledge to not commit future violations against the FOIA.
The PDF copies of both letters can be read HERE.
