City of Fort Smith, a Municipal Corporation v. Wade
2019 Ark. 222
Ark.2019Background
- In 2017 Fort Smith hired Nathaniel Clark as police chief; he sought to change Civil Service Commission (CSC) rules to allow external candidates for sergeant and higher ranks.
- Multiple emails were exchanged among the city administrator and city directors (May 21–31, 2017) discussing the CSC, possible dissolution, and options after the CSC declined rule changes; some directors replied to those emails.
- A public board meeting on June 6, 2017 resulted in adoption of a nonbinding resolution supporting Clark’s requested changes; no rule changes were made by the CSC at its May 22 meeting.
- Bruce Wade sued, alleging the May 21–31 emails (and later August emails about a proposed settlement) constituted meetings in violation of Arkansas FOIA’s open-meeting provisions for the Fort Smith Board.
- The circuit court granted Wade summary judgment; the City appealed. The Arkansas Supreme Court reversed as to liability for the May and August email exchanges and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether electronic communications (email) can constitute a "meeting" under Arkansas FOIA | Wade: emails among board members discussing official business can be meetings subject to FOIA | City: FOIA does not expressly include email; court should not judicially expand FOIA to cover email | Yes: FOIA’s open-meeting provisions apply to email and other electronic communications (liberal construction and parity with telephone polls) |
| Whether the specific email exchanges here violated FOIA (decisional vs. background/info sharing) | Wade: the May and August emails were discussions advocating action and thus unlawful informal meetings | City: emails were background, non-decisional, unsolicited responses; any eventual action occurred at public meetings | No violation: on these facts the emails amounted to information/recommendations and unsolicited responses, not solicitation of decisions or an exchanged agreement—thus no FOIA violation; case reversed and remanded |
Key Cases Cited
- Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (Ark. 2004) (telephone polls and serial third-party contacts can create informal meetings under FOIA)
- Rehab. Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (Ark. 1985) (telephone poll with proper notice may be acceptable open meeting)
- McCutchen v. City of Fort Smith, 2012 Ark. 452, 425 S.W.3d 671 (Ark. 2012) (dissemination of informational memorandum and unsolicited voluntary comments by members did not violate FOIA absent discussion or exchanged correspondence)
- El Dorado v. El Dorado Broad. Co., 260 Ark. 821, 544 S.W.2d 206 (Ark. 1976) (definition of informal meeting: group meeting called to discuss or take action on matters where foreseeable action will be taken)
- Air Evac EMS, Inc. v. USAble Mut. Ins. Co., 2017 Ark. 368, 533 S.W.3d 572 (Ark. 2017) (judicial interpretations of statutes are presumed known to the legislature; legislature may amend statute if it disagrees with court interpretation)