by Max Brantley
Attorney General Dustin McDaniel has issued an opinion on the Freedom of Information Act as it pertains to e-mail among members of the Little Rock School Board. Read it here.
In short, he said, in response to a question from the Arkansas Democrat-Gazette, that a standing FOI request, prospectively, for these e-mails is not a valid FOI request. The e-mails, once sent, are open for inspection. He cautions that e-mail discussions among board members could amount to a private board meeting and thus run afoul of the FOI law's requirement for notice of meetings and public participation.
Close readers probably know that this FOI request -- and I made a similar one long ago -- grew out of the Arkansas Blog's pipeline to many of these communications. They have been on topics that have sometimes been of great news value. Competitive motivation aside in the newspaper's request for an opinion, it's important to remember that this case highlights a practice that is epidemic throughout Arkansas government.
Members of boards and commissions talk to each other outside of meetings about public business via e-mail. It is a meeting of two board members to discuss public business no less than a face-to-face meeting would be. These discussions -- sometimes by means of e-mails sent to boards as a group -- amount to private meetings at which decisions on public business are formed, if not formally made. It was a method of communication not invented, much less contemplated, when the FOI law was shaped.
So, while the issue here is LRSD -- and it is a proper cause for concern -- don't believe that it is the only agency where the practice is occurring.
This issue may be the subject of legislative battles in the future. In the short run, perhaps reporters can FOI public bodies daily for messages sent the preceding day.
Noted: I'm aware of this news because I was supplied with a copy of the e-mail about McDaniel's opinion. I don't believe the D-G has written about this opinion yet, or its request for it.