LITTLE ROCK — The Arkansas Supreme Court heard oral arguments Thursday in an appeal challenging a Sebastian County circuit judge’s ruling that portions of the the state Freedom of Information Act are unconstitutional.
The court did not immediately issue a ruling in the case, which began as a lawsuit by Fort Smith lawyer Joey McCutchen alleging that the city of Fort Smith violated the FOI law in May 2009 when then-City Administrator Dennis Kelly discussed city business with several city directors in a series of private, one-on-one meetings.
Sebastian County Circuit Judge James Cox ruled in October 2011 that no FOI violation occurred. He also ruled that portions of the FOI law are unconstitutional, saying that its criminal provisions are not the least restrictive means available of advancing the goal of open government and that the law is vague as to what constitutes a meeting. McCutchen appealed the ruling.
On Thursday, justices asked few questions about the issue of constitutionality, instead focusing mainly on whether the city violated the FOI law.
"I think we probably agree that the trial court did not have to get into the constitutional issues," Brown said, apparently signaling that the court is likely to strike down at least part of Cox’s ruling.
Brian Brooks, an attorney for McCutchen, argued that when Kelly spoke individually to directors about his proposal to give himself hiring and firing power over heads of city departments, he advocated for its passage — something he said should only happen in an open meeting.
Brooks said the court has already ruled, in the case Harris v. Fort Smith, that a different Fort Smith city administrator violated the FOI law when he polled board members individually in private about the purchase of a piece of property.
"You can’t undermine the FOI by going one at a time and doing the same thing that would require a notice of a public meeting if you put them all in the same room," Brooks said.
Fort Smith City Attorney Jerry Canfield argued that the present case is different from the Harris case because Kelly, by his account, did not ask the directors how they would vote on the issue, though some volunteered their positions. He also said the proposal was never placed on the board of directors’ agenda and was never brought to a vote.
Justice Robert Brown asked Canfield if he was asking the court to overturn its ruling in Harris v. Fort Smith. Canfield said he was not, because the contact that occurred between Kelly and the directors did not rise to the level prohibited under Harris.
"This court can resolve the state of confusion by saying, ‘Stop speculating on the basis of Harris that any informational exchange is a meeting,’" Canfield said.
Canfield argued that it is unconstitutional to subject city officials to the possibility of criminal prosecution for violating the FOI — no official has been charged in the present case — and that the FOI law is unconstitutionally vague because it does not define the term "meeting."
Canfield said the Legislature should make the law more clear as to what constitutes a meeting. The Supreme Court’s ruling in Harris v. Fort Smith "did not resolve anything," he said.
Brooks argued that the Harris ruling is clear and that the issue of constitutionality was never properly before Cox.
The court did not say when it would issue a ruling.