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Did Ft. Smith Board Emails Violate FOIA? Ark. Supreme Court's Opinion...

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On Thursday, June 20, 2019, the Arkansas Supreme Court ruled that the City of Fort Smith did not violate the state’s Freedom of Information Act (FOIA). That court’s opinion reversed the lower court ruling, and Attorney Joey 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.

This is a DRAMATIC, detrimental change in the law. 

The city directors were using city emails to discuss a particular issue. As reported by TalkBusiness:

Fort Smith resident Bruce Wade, represented by attorney Joey McCutchen, sued the city in 2017 claiming emails between several city directors about the employment practices of Fort Smith Police Chief Nathaniel Clark violated the open meeting rules within the FOIA. The emails centered on Clark’s desire to amend rules of the Civil Service Commission (CSC) to allow hiring and/or appointment of officer positions to include external applicants, a decision opposed by the Fraternal Order of Police (FOP) that was allowed to die for lack of motions at the commission’s May 22 meeting.


In Secure Arkansas’ view, this ruling tramples on our precious FOIA, the Sunshine Law. The Arkansas Freedom of Information Act (FOIA) is one of the greatest pieces of legislation that has ever been introduced to the public!  Secure Arkansas is a BIG PROPONENT OF FREEDOM, and Freedom of Information is no exception. We use it ALL THE TIME! 

Let the sun shine in! More transparency is needed in government, don’t you agree?

If our elected officials ever meet in secret, we’re doomed to policies that will not be pleasing to the public.

Our Constitutional Republic has been replaced by a bureaucratic oligarchy that is unelected and unaccountable, and they possess a lot of power. Agency heads have been known to govern corruptly.

We must save our ability – and our legal right – to request FOIAs! The Freedom of Information Act (FOIA) is a law that provides the public the right to request access information from:

  • agencies

  • county government

  • municipal government

  • state government

  • public schools


Stated in the Arkansas Freedom of Information Handbook 25-19-102 Legislative intent:

“It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them or their representatives to learn and to report fully the activities of their public officials.”


There was a split decision in the court case. More from TalkBusiness

 However, the court ultimately agreed with the city that the content of the emails did not violate the FOIA because “no response was solicited.” The court said the email exchanges “contain information, a recommendation, and unsolicited responses with no decision.” The court also said the board discussed the issue and took action in public meetings.  

The topic this board was discussing, and about which they were voting, needed to be done in public meetings, not hidden in an electronic format, regardless whether a response was solicited or not.

Secure Arkansas disagrees with the Supreme Court’s ruling in this FOIA case. This ruling is harmful, unwelcome, and unacceptable! It’s hostile to the public.

Read the press release (directly below) from Joey McCutchen, an attorney and staunch supporter of the public’s right to Freedom of Information.

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June 20, 2019

Joey McCutchen 479-783-0036 or 479-806-4878

Please find attached the Arkansas Supreme Court’s opinion delivered today in City of Fort Smith v. Bruce Wade.

“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. 

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Secure Arkansas commends attorney Joey McCutchen for his honorable stance to protect the public and the FOIA process.

Let freedom ring!

As ever — stay aware, stay involved, and stay vigilant.


Remember: eternal vigilance is the price of liberty.

As always, you can find our email articles posted on our website:  The Search box is a handy tool.  

For more information about a topic, just type it into the Search box on our website, and click Enter!

Securing the blessings of liberty,

Secure Arkansas
[email protected]


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The material in our emails/alerts and on our websites is only intended to provide general information and comment to the public. We make an effort to ensure that the information found in our emails/alerts and on our websites is accurate and timely, but we can’t and don’t guarantee that. Nor do we guarantee the accuracy or timeliness of any information contained on websites to which our websites or emails provide links.

Information found in our emails/alerts and on our websites should not be taken as legal advice. Legal matters can be complicated. For assistance with a specific legal problem or question, please contact a knowledgeable lawyer for assistance.

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