Ark. Supreme Court reverses lower court decision that state open meetings law was unconstitutional

Lilly Chapa | Freedom of Information | News | December 7, 2012

The Arkansas Supreme Court on Thursday overturned a lower court’s decision that the open meetings provisions of the state’s Freedom of Information Act is unconstitutional, stating that questions about how the law applies to changes in technology and other concerns should be taken to the legislature, not the court.

But the Supreme Court also upheld the circuit court’s ruling that local government officials did not violate the Act when an administrator met with city board members in a series of one-on-one meetings.

“Instead of taking their argument to the legislature, appellees sought – and received – a legal opinion from the circuit court rather than the resolution of an actual controversy,” Arkansas Supreme Court Chief Justice Jim Hannah stated in the opinion. “We have long held that courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules for future conduct.”

McCutchen v. City of Ft. Smith began as a lawsuit about whether a Ft. Smith city administrator’s action of individually meeting with city board members violated open meetings laws but turned into a debate about whether Arkansas’ FOIA is constitutional.

Local attorney Joey McCutchen sued the city of Fort Smith after he learned that in 2009 former city administrator Dennis Kelly discussed city business one-on-one with city leaders. The Sebastian County Circuit Court ruled not only that Kelly did not violate the FOIA, but that the law was vague, overbroad and violated the First Amendment. McCutchen appealed the decision.

In oral arguments last Thursday, attorneys and judges debated whether Kelly’s actions constituted a public meeting under FOIA. The city said the open-meetings provision of FOIA did not apply to Kelly’s case because the law does not contain a statutory definition of what a meeting is, Hannah said.

“The FOIA does not attempt to give an exact description of every conceivable fact situation that might give rise to the application of FOIA,” Hannah stated. “It is left to the judiciary to give effect to the intent of the legislature, and in our prior decisions construing the FOIA, we have given effect to that intent.”

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief, urging the state Supreme Court to reconsider the lower court’s decision and arguing that open meetings laws do not infringe upon officials' First Amendment rights.