by Max Brantley
Attorney General Dustin McDaniel says he will seek to intervene in a Fort Smith case in which criminal penalties in the state Freedom of Information Act were held unconstitutional. The ruling also seemed to broaden ways in which members of governing bodies can be solicited one-on-one for opinions in shaping future decisions. McDaniel says the FOI law should be broadly construed in the interest of more openness, not less. Yes.
NEWS RELEASE FROM MCDANIEL
Attorney General Dustin McDaniel announced today that he has moved to intervene in order to appeal a Sebastian County circuit judge’s decision that said a portion of the Arkansas Freedom of Information Act was unconstitutional.
The Attorney General filed a Motion to Intervene and a Motion to Stay Pending Appeal the decision by Circuit Judge James Cox in a lawsuit filed by a Fort Smith citizen against the city of Fort Smith. In his decision issued last week, Cox found that the provisions of the Freedom of Information Act providing for criminal sanctions violated the state and U.S. constitutions.
McDaniel asks to be allowed to intervene in the matter in order to defend the constitutionality of the Freedom of Information Act. The Attorney General requests a stay of the decision pending an appeal. He said a stay would avoid confusion about the FOIA’s applicability until the state Supreme Court reaches a binding decision.
“The Arkansas Freedom of Information Act is constitutionally sound, and 44 years since its adoption, it remains one of the strongest laws in the nation for government transparency and accountability,” McDaniel said. “I respectfully disagree with Judge Cox’s decision. Our Office will vigorously defend this validly enacted law before the state Supreme Court. The law is strengthened by the criminal remedies offered within the Act, and prosecutors should continue to have the discretion to pursue violators.”
In his decision, Cox said a provision of the Act that allows for misdemeanor criminal charges was unconstitutional because it is not narrowly tailored and failed a “strict scrutiny” standard. If permitted to intervene and appeal, McDaniel will argue that the Cox applied the wrong legal standard in reaching his decision and that the trial court's ruling was contrary to similar decisions by other courts.
McDaniel also intends to ask the appellate court to review Cox’s decision regarding what constitutes an open meeting under the FOIA. At issue in the underlying case is whether Fort Smith city officials violated the FOIA when the city administrator had a series of one-on-one discussions with city directors in 2009.
“Courts have most often taken the position that the Freedom of Information Act should be interpreted broadly toward openness,” McDaniel said. “A broad interpretation in this context is appropriate as well. I look forward to reaffirming the State’s commitment to this Act before the Supreme Court.”