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Private company exempt from FOI law, court told Friday, Oct 26, 2007 By Rob Moritz Arkansas News Bureau LITTLE ROCK - A privately owned company should not have to make its records public, even though it was lead contractor on a high-dollar state project, the firm's lawyer said Thursday before the state Supreme Court. "Up to this point the court has never extended the Freedom of Information Act such that a private industry can be sued directly under the Freedom of Information Act," Jeffrey Moore, attorney for Nabholz Construction Co., argued before the court. Ron Hope, attorney for Contractors for Public Protection Association, urged the high court to uphold a March ruling by Pulaski County Judge Marion Humphrey that ordered Nabholz to release a detailed listing of $2.5 million in overhead expenses it received for construction of a $35 million dormitory at the University of Arkansas. The contractor advocacy group opposes a state law that allows the awarding of contracts on projects of more than $5 million without competitive bidding. The group hopes that the FOI case before the Supreme Court, and a separate lawsuit pending in Pulaski County Circuit Court, will eventually lead to the law being overturned. Moore argued Thursday that the FOI law covers only certain entities, including state agencies, local governments, school districts and some groups supported by public funds. "Obviously, Nabholz is not a state agency, city, county, township or school. Nabholz is a private organization," he said. Moore said the justices must consider whether Nabholz falls under the state's FOI, before it considers whether the construction records are public. Contractors for Public Protection Association "only wants you to look at whether a document is a public record," Moore argued. Hope told the justices that the information his contractor advocacy group is seeking is public because the company was paid state tax money to build the $35 million dormitory. "The public should have access," he said, adding that the records are public under a provision of the FOIA that has been interpreted by the courts to extend to private companies that perform public functions. Several justices questioned why the university was not a party in the lawsuit. Some also wondered if the case might frighten private companies from doing work with the state. "Wouldn't your beef be with the University of Arkansas, which was expending the public's money?" asked Justice Donald Corbin. "Why would a (private) entity ever contract with the state of Arkansas to do business if they are going to be subject to an invasion of their ongoing business enterprises?" Hope said the university provided the information it had and told him that Nabholz might have the rest. "It was our belief that the university gave us everything we asked," he said. Chief Justice Jim Hannah asked Moore if Nabholz would have released the information had the university been named a party. Moore said the information might have been released in a limited fashion, but he really did not know, but "I'm speculating," he said. Moore said Nabholz was not the proper defendant to be sued in the case, but he declined to say if the university should have been the target. Glaze asked whether the Supreme Court had jurisdiction to remand the case back to circuit court and ask that the university be added as a party. "It doesn't seem to be a good use of resources" to send the case back to circuit court just to add the university as a party, Hope said. "I don't know if that is necessary since we have the entities here." While the association tries to get the expense records from Nabholz, it has another lawsuit pending in Pulaski County Circuit Court that challenges the constitutionality of the state law that allows the state to award some contracts for constructing or repairing public buildings without competitive bids. State law requires that state contracts for constructing or repairing buildings "in any county" be awarded to the low bidder. In 2001, the Legislature created an exception to allow the awarding of building contracts to be based on factors other than cost if the project exceeds $5 million, excluding land costs. |
