City of Fort Smith v. Wade

The Freedom of Information Act (FOIA), one of the most significant governmental reform laws ever enacted by the Arkansas General Assembly, withstood many efforts in the state legislature and the courts to curtail the public’s right to know what state and local governments were doing. The efforts multiplied in the second and third decades of the twenty-first century. One such tactic that did succeed was a lawsuit, cited as City of Fort Smith v. Wade, in which the Arkansas Supreme Court altered the meaning of a public meeting so that private emails among city officials about an issue before the city board of directors did not violate the FOIA because the emails probably did not directly affect the city board’s decision on the matter. Two of the seven justices virulently disagreed, writing that the precedent could violate the public’s right to know what government was doing and why and how it was doing it.

City of Fort Smith v. Wade arose from a dispute in the city government of Fort Smith (Sebastian County) in 2017 over a proposal to change civil service rules as part of an effort to hire more women and minorities in the police department. A city director sent an email to the other six members of the city board and to the city administrator, and eventually two other board members sent emails debating how the matter should be handled. Bruce Wade, a resident of the city, filed a lawsuit against the city and the directors contending that they had violated the open-meeting provision of the Freedom of Information Act by discussing city matters without alerting the public. The FOIA, which was enacted in 1967, says all discussions of public issues by governing bodies must be open to the public.

Circuit Judge J. Michael Fitzhugh ruled that Wade was right and that the city and the three directors who sent the emails had violated the FOIA, as the emails were a part of government discussion of what to do about the civil-service rules and the police department. The city appealed this ruling.

Justice Courtney Hudson, writing for the majority on June 20, 2019, agreed that the Supreme Court had consistently held that telephone conversations amounted to a public meeting, so electronic communications such as emails also constituted a meeting in violation of the FOIA. But she wrote that the city was right that the emails did not constitute a violation of the FOIA, because the emails simply provided background information and were not an actual part of the city’s decision on the police hirings. Rather, Hudson wrote, “the emails here contain information, a recommendation, and unsolicited responses with no decision.”

Justices Josephine Linker Hart and Robin Wynne said the majority misconstrued the court’s precedents in holding that email conversations did not violate the open-meetings law because they did not lead to a decision by the city board or administrator. Both cited the language of the FOIA and the original Supreme Court decision on the act that the principle of democracy demanded that government decisions be made in the open so that electors were informed about how their government was serving them. “Today’s majority opinion,” Hart wrote, “denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret. Secrecy is poison to democracy.”

John Tull, an attorney for the Arkansas Press Association, said the reversal in City of Fort Smith v. Wade strayed from the court’s precedents on the need for a consistently liberal interpretation of the law in the public’s interest and would act as an invitation to government bodies to hide their decision making. “In my experience,” he said, “there have been boards around the state who have occasionally attempted to circumvent the public-meeting requirements in the FOIA through the use of the telephone or the Internet. I think [the opinion] will be misused to the detriment of the public.”

The decision was followed in the next four years, particularly in legislative sessions in 2023, by efforts to weaken the application of the FOIA and to foreclose the use of the act to obtain information on what the government is doing.

For additional information:
City of Fort Smith, A Municipal Corporation, et al. v. Wade, Arkansas Supreme Court, 2019, Ark. 222, June 20, 2019. https://opinions.arcourts.gov/ark/supremecourt/en/item/417225/index.do (accessed April 4, 2024).

Moritz, John. “City Leaders’ Emailing No Breach, Court Says.” Arkansas Democrat-Gazette, June 21, 2019, pp. 1A, 4A.

Ernest Dumas
Little Rock, Arkansas