An Arkansas Freedom of Information Act violation civil lawsuit the city of Fort Smith lost in January was appealed to the Arkansas Supreme Court on Thursday.

In January, Sebastian County Circuit Judge Michael Fitzhugh granted a summary judgement in favor of plaintiff Bruce Wade of Fort Smith, concluding a series of emails exchanged between Fort Smith city directors and the city administrator in May and August 2017 constituted a violation of the act.

The subject of the emails revolved around Fort Smith Police Chief Nathaniel Clark’s request to amend the rules of the Civil Service Commission to allow the hiring or appointment of officer positions to include “external applicants,” or those from outside the city force.

“Under the facts of this case, the Court concludes that informal meetings subject to the FOIA were held by way of emails,” Fitzhugh’s January order states. “The purpose of which were to either opine or survey the members as to the demise of the CSC (Civil Service Commission) and/or acceptance/rejection of a settlement. These are clearly matters that should have occurred in a public setting.”

The city’s defense in the case is that no decision was made in the email exchange. City Attorney Jerry Canfield also states in his appeal brief, "whether Arkansas Constitutional free speech, due process and separation of powers implications support reversal of the circuit court's declaration that email can constitute a FOIA meeting so that the General Assembly can state its intention on the topic..."

Fort Smith attorney Joey McCutchen represents Wade in City of Fort Smith v. Wade.

“If Fort Smith’s argument is upheld, any governing body, board or commission could circumvent FOIA’s laudatory purpose of open government by discussing public business through a series of group email exchanges involving the entire governing body,” McCutchen wrote in the appeal brief issued Thursday.

City Directors Andre Good, Keith Lau and Mike Lorenz are co-defendants in the case. McCutchen notes that all seven city directors were included in all but one of the emails.

City Attorney Jerry Canfield of Daily & Woods in Fort Smith says there is no law that keeps the city directors from exchanging “pre-meeting information,” and even if there was one “it’s not a meeting if no decision is made.”

“It’s just an exchange of pre-meeting information,” Canfield said by phone Thursday. “There’s not even a legal argument they were trying to sway opinion.”

City Directors Good, Lau and Lorenz emailed replies to City Administrator Carl Geffken with opinions on the Civil Service Commission request and then later, the lawsuit that called the email exchanges an FOIA violation. More than $31,000 has been billed to the city by Canfield so far in the matter.

The issue of whether or not an exchange of emails like this between city directors is a violation of FOIA will also be addressed by the Arkansas Freedom of Information Act Task Force on July 16 in Little Rock. The task force will meet at 1 p.m. that day in Room 151 at the State Capitol.

Although it is commonly referenced in Arkansas FOIA violation lawsuits, Canfield does not think Harris v. City of Fort Smith applies to this case. In 2002, David Harris of Fort Smith filed an FOIA violation lawsuit with the city and lost on the local level, but in a 2004 reversal the appeals court stated “serial conversations” between then-City Administrator Bill Harding and individual directors about purchase of the Fort Biscuit Co. building downtown at auction constituted an informal meeting and therefore were subject to FOIA with requirement of a public notice.

David Harris, plaintiff in that FOIA case, said Thursday the outcome of Harris v. City of Fort Smith doesn’t offer specifics on whether or not there has to be less than a quorum or not in a discussion “it just says don’t do it.”

“I want to hear these discussions in public,” Harris said by phone Thursday. “If I read about it in the paper tomorrow it’s too late. They want it to be specific so they can get around it."

Canfield said the decision to appeal the circuit court decision was made by the city board in a Sept. 12 study session when the settlement with Wade was rejected. Geffken emailed a settlement offer regarding the lawsuit over the May emails to the city board and the mayor on Aug. 9 and recommended that the board not accept the offer.

McCutchen said the settlement offer was he would waive legal fees if the city board admitted it had violated FOIA and "agree to not to do it again." Another part of the settlement offer was that the city not appeal the court's decision.