by Max Brantley
Sebastian County Circuit Judge James Cox delivered a disappointing decision for open government advocates yesterday. He ruled against a Freedom of Information act lawsuit over a series of one-on-one meetings the Fort Smith city administrator had with members of the Fort Smith Board of Directors about a policy to allow the administrator to hire and fire department heads.
Cox said the Arkansas Supreme Court had not left clear enough guidance in another suit, also from Fort Smith, that held one-on-one meetings could constructively be considered meetings and thus open to the public. He said there are open questions about what third party can contact a governing board one-on-one and what the distinctions are between polling on a decision and strictly informational contact. He said the legislature, not the courts, should define what the law means by "meetings." He mentioned specifically e-mail, which, increasingly, has become a way by which public boards have hashed out future decisions in private.
Cox also struck down as unconstitutional criminal penalties for FOI law violations. There are "less restrictive" means to advance the cause of open government, he ruled.
The case presumably will be appealed. The outcome could reshape thinking on the FOI.