Arkansas FOIA: Soliciting Individual Board Approval Constitutes a Meeting, Providing Background Information Does Not

In contrast to Washington law, the open-meetings provision of the Arkansas Freedom of Information Act (FOIA) does not define “meetings” that are subject to the Act’s requirements. Here, the Arkansas Supreme Court concludes that submitting a draft ordinance and a memorandum in support of that ordinance does not constitute a meeting subject to the FOIA’s requirements.

In McCutchen v. City of Fort Smith, City Administrator Kelly circulated a draft ordinance expanding his hiring-firing authority, a memorandum supporting the ordinance, and other documents to five of seven members of the Fort Smith Board of Directors in advance of a Board study session. Plaintiff McCutchen sued the City, alleging that Kelly violated the open-meetings provision of the FOIA by engaging in a series of private one-on-one meetings with Board members.

Although some Board members expressed support (and others opposition) to the proposed ordinance, the Arkansas Supreme Court held that Kelly did not violate the FOIA because he did not solicit specific responses from Board members. Moreover, McCutchen failed to produce evidence that the proposed ordinance was discussed or debated prior to the study session or that Board members exchanged any correspondence about the memorandum.

The Court distinguished the prior case Harris v. City of Fort Smith, where a city administrator violated the FOIA by holding one-on-one meetings with Board members in order to obtain approval to acquire property at auction. The administrator sought secret approval, and later ratification by Board resolution, in order to avoid making public the city’s maximum bid prior to the auction. There, the administrator violated the FOIA because the individual contacts to seek Board approval constituted an informal meeting subject to the FOIA’s open-meetings provision. City Administrator Kelly did not seek similar pre-approval, here.