Arkansans fight the power
Arkansas Sen. Stephanie Flowers, D-Pine Bluff, questions Sen. Bart Hester, R-Cave Springs, about proposed FOIA legislation during the special session on Sept. 11, 2023. (John Sykes/Arkansas Advocate)
This is why Arkansas needs to keep a strong public records and open meetings law, and make it stronger.
On Dec. 4, Helena-West Helena Police responded to an unidentified caller’s report of a “gang fight that included parents” at the city’s Central High School. Less than 10 minutes later, the school district’s independent campus police department told city officers they weren’t needed.
We know this much about the violence that day thanks to the reporting of Phillips County’s scrappy weekly newspaper The Helena World.
Since then, however, the Helena-West Helena School District has stonewalled newspaper publisher Andrew Bagley’s public records requests for school security video, incident reports and other documents. Even after he filed a lawsuit under the Arkansas Freedom of Information Act on Jan. 29.
The school district claimed a broad exemption to disclosing the video and other information under the federal Family Educational Rights and Privacy Act (FERPA), but, as the World’s lawsuit points out, FERPA allows the release of information if students’ identities are redacted.
Besides, the district undermined its own position when it held an expulsion hearing on Jan. 4 and not only publicly disclosed the names of students who participated in the melee, but discussed one student’s prior disciplinary record without the student being present or represented.
And, as Bagley pointed out in an article, the school district’s FERPA exemption claim is so broad that a publication “wouldn’t even be given the Honor Roll to print because it could be considered a student record under HWHSD’s claim.”
The school district “just doesn’t want this to see the light of day because it results in negative public relations,” Bagley said in the article.
“People have a right to know what is happening in their schools and how those entrusted with its management deal with issues. Bad things happen. Often, it’s the response to it that results in problems,” he said.
But the publisher’s struggle to make the school district comply with the FOIA isn’t his only public records battle.
After Helena-West Helena Mayor Christopher Franklin fired four police officers amid allegations of use of excessive force in February, the World asked for the officers’ personnel files and body camera footage.
Surprise! The city is stonewalling. City Attorney Andre Valley, citing an ongoing investigation exception for the video, requested an opinion from Attorney General Tim Griffin on whether the records can be released, but Griffin’s office sidestepped the issue, saying the city didn’t ask a clear-cut question, and declined to opine.
Since then, the mayor has left the matter in the hands of the city attorney, who continues to oppose the release of the personnel records and the body cam footage. Worse yet, the county prosecutor supports the city attorney’s position.
“This apparently is going to be the M.O. going forward. Delay, deny, delay,” Bagley said in an interview last week.
A proposed initiated act that would toughen civil penalties for violating the state FOIA and create a commission to help citizens enforce the law would help, Bagley said. He is part of the bipartisan coalition seeking to get the measure on the November ballot.
The proposed Arkansas Government Disclosure Act will “provide an avenue other than through a lawsuit” for citizens to enforce their right to know, Bagley said.
Plus, the criminal penalties in the Arkansas FOIA as it stands are “worthless,” he said. Prosecutors have rarely filed criminal charges under the law’s misdemeanor provision.
Bagley added that his paper’s fight to enforce the FOIA is more than just a local fight.
Proof of that came last month in a Crittenden County Circuit Court lawsuit in which the West Memphis School Board admitted violating the FOIA by interviewing candidates for superintendent without notifying the public of the special meetings and by failing to record the meetings. The court ordered the school district to pay the plaintiffs’ court costs and $1,500 in attorneys fees.
“This lawsuit is a perfect example of why the people of Arkansas are pursuing a constitutional amendment and people’s act to enshrine the right to transparency in our constitution,” attorney and FOIA warrior Joey McCutchen said in a news release about the case. McCutchen represented the plaintiffs.
“This case is the perfect example of the need in the people’s law to allow a Circuit Court to hold individual wrongdoers personally liable with the imposition of a $1,000 civil penalty which will not be satisfied with public funds,” he said, referring to provisions in the proposed Government Disclosure Act.
“Conduct rewarded is conduct repeated,” he said.
Supporters of the disclosure initiative and the proposed constitutional amendment to enshrine the people’s right to know in the Arkansas Constitution are gathering signatures now to get both items on the November ballot.
After years of legislative moves to weaken the FOIA, encouraged last year by Gov. Sarah Huckabee Sanders, the Helena-West Helena and West Memphis cases show why we need the pending proposals.
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