Columns » Max Brantley

Digital darkness

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The Internet has created a way around the Arkansas Freedom of Information Act and, best I can tell, few have noticed or care.

I was reminded of this pet peeve last week, when state Rep. Jon Woods got a requested opinion from the attorney general on whether e-mail about public business, if written on public officials' private personal or business e-mail accounts, was open to inspection under the FOI.

The opinion said private parties were not bound to respond to FOI requests. The opinion continued in a plaintive, if not legally helpful, vein:

“While it is clear that there must be a procedure to obtain the records, the details of that procedure are unclear under the FOIA because the Arkansas Supreme Court has not squarely addressed the situation you posit. In my opinion, there must be a procedure to obtain these e-mails because, otherwise, the FOIA would be subverted, which is something the Arkansas Supreme Court has repeatedly made clear it will not permit. If no procedural mechanism exists to obtain admittedly public records, then a citizen's substantive right to obtain the records is effectively destroyed.”

There must be some way at this stuff. Just don't ask me what it is.

Such e-mail exists, of course. Tons of it.

My own experience with Little Rock School Board communications is instructive. A year or so ago, at my request, Board member Michael Daugherty began forwarding to me copies of the e-mails he routinely received as a Board member from other members, district officials and the district's lawyers. He used his private e-mail account. An FOI request to the School District would have produced any e-mails sent or received by district officials, but not those written only to and from Board members, all with e-mail accounts outside the district.

A lot of it was routine stuff. Sometimes, though, it included important information. What's more, comments among School Board members were quite interesting. They frequently foretold where members would stand on coming votes. Their questions sometimes produced changes in proposals before they reached Board votes. Thanks to the infinite space of our Arkansas Blog website, I published many of these communications in full and left it to readers to draw conclusions.

Daugherty mentioned our communication at a recent School Board meeting. I haven't always agreed with Daugherty's votes, but he and I did agree that the more the public knew about district management, the better.

It occurred to me long ago that these e-mail exchanges amounted to virtual School Board meetings. A key difference is that Board members rarely, if ever, were conversing by e-mail at precisely the same time. The Arkansas Supreme Court has made it clear that two members of a public body may not meet in person without public notice. A board also may not meet by telephone round robin as a means to defeat the openness intended by the FOI.

Yet here we are, in a world hwere e-mail has become perhaps the dominant form of communication. An increasing number of public officials at every level of government are using it to receive vital information, discuss that information and sometimes develop decisions as they text back and forth.  The final votes — even when taken in public — sometimes are little more than a formality to complete a process carried out mostly in secret.

To paraphrase the attorney general: there must be a way to obtain access to these discussions, otherwise the FOIA will continue to be subverted.

 

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