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Arkansas FOIA challenged as “unconstitutionally vague”

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  1. Freedom of Information

The Arkansas Freedom of Information Act is heading to the state Supreme Court in what will likely be a legal battle over whether prosecutors can pursue misdemeanor criminal charges for violations of the broadly-worded law.

The case centers around Circuit Judge James Cox’s ruling declaring parts of the state’s FOIA unconstitutional. Cox wrote in his decision that the definition of “meeting” and the criminal penalties for violations contained in the law are “unconstitutionally vague.”

Arkansas Attorney General Dustin McDaniel, however, announced yesterday that he will challenge the ruling and filed a motion requesting to intervene to defend the constitutionality of the law. McDaniel also filed to stay the judges’ ruling until a final decision has been made.

One of the plaintiffs, attorney Joey McCutchen, also filed a motion asking the judge to reconsider his ruling, which strikes down the criminal penalties of the law.

“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 in a press release. “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.”

The attorney general and the plaintiffs in the case have not yet filed an appeal, which would bring the debate over the ruling to the Arkansas Supreme Court.

The judge’s decision dismissed the charges brought by McCutchen, a local attorney, against the City of Fort Smith. The lawyer alleged that the city administrator violated the open meetings provision of the state FOIA when he had one-on-one conversations with members of a city board over the hiring and firing of department heads.

Under the current Arkansas law, the city officials could have a fine of up to $200 and up to 30 days in jail if they were found guilty of violating the open government law.

“The fact that the open meetings laws of 31 states lack criminal provisions patently demonstrates that less restrictive means are available to advance the goal of open government and access to information,” Judge Cox wrote in the 65-point conclusion of his decision. “Arkansas’ FOIA fails the narrow-tailoring requirement and, therefore, violates the Arkansas and United States constitutions.”

The judge also suggested that the Arkansas legislature — not a ruling by the judicial or executive branch — should consider narrowing the definitions contained in the law so that government officials will know if they are violating the act.

But McDaniels countered by issuing a press release in which he said that most courts have taken the position that the state’s FOIA should be interpreted broadly towards openness.

“A broad interpretation in this context is appropriate as well,” McDaniels said. “I look forward to reaffirming the state’s commitment to this act before the Supreme Court.”


The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.