Fort Smith attorneys file FOIA lawsuit against Washington County

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FORT SMITH, Ark. (KNWA/KFTA) — Fort Smith attorneys Joey McCutchen and Stephen Napurano, along with their client Mickey Wayne Wagner, filed a Freedom of Information Act lawsuit against Washington County on March 26.

According to the lawsuit, Washington County is accused by Wagner, a former member of the Washington Water Authority Board, of violating FOIA in 2023 by failing to record all of the board’s meetings.

The lawsuit says Wagner sent a FOIA request to the custodian of records at the Washington Water Authority on February 29, 2024 seeking, among other things, digital recordings of all board meetings dating back to January 1, 2023.

According to the lawsuit, on March 1, the custodian of records directed Wagner to the Washington Water Authority YouTube channel to access the digital recordings of the board meetings.

The lawsuit says Wagner found that the YouTube channel only had recordings from the January 26, 2023, March 16, 2023, and September 12, 2023 board meetings.

None of the other regular board meetings from 2023 were posted on the Washington Water Authority channel, according to the lawsuit. It says on March 18, legal counsel for the Washington Water Authority contacted Wagner and confirmed that no additional audio or video recordings for the other specified board meetings exist.

Judge: Washington County violates Freedom of Information Act

This lawsuit mentions a previous lawsuit where a judge ruled that Washington County violated FOIA.

In that case, the plaintiff, Justice of the Peace Beth Coger wanted to know when the Jobs Evaluation/Salary Administration Program Committee planned on meeting. Those meetings were not recorded and the court in that case ruled that the JESAP Committee was a “public body” as contemplated by FOIA and was subject to the notice and recording requirements. The county appealed the ruling in that case.

Washington County to appeal FOIA lawsuits

Coger and the county were part of a separate lawsuit where the court ruled that another committee created by the county violated FOIA by failing to properly record meetings. The county also appealed the ruling in that case, arguing that the open-meeting provisions of FOIA, and by extension, the open-records provisions of the FOIA, do not extend to county committees or boards.

“Conduct reward is conduct repeated. This is just another example of why we need the proposed Constitutional Amendment which would hold wrongdoers personally liable for purposefully violating FOIA,” McCutchen said. “It’s clear from Washington County’s position in the Coger case that they intend to blatantly disregard FOIA and the People’s Right to Know.”

Washington County is listed as the defendant in this case. The lawsuit states “an action against the Washington Water Authority is, by operation of Arkansas law, an action against the county.”

A spokesperson for the county said they have not yet reviewed the lawsuit, but it is policy for the county not to comment on pending litigation.

The spokesperson said the county does not have jurisdiction or authority over the Washington Water Authority and that it has its own director and legal representation. They said the only interaction between the Washington Water Authority and the county is when the county judge appoints board members.

We have reached out to the Washington Water Authority for comment and they said:

Full transparency and compliance with the Freedom of Information Act is important to Washington Water Authority. To the extent that WWA did not comply with FOIA, this oversight arose as a result of the installation in late 2023 of an entirely new slate of board members and the inevitable learning curve related to the board’s realization of the numerous pre-existing policies and procedures related to the operation of the water utility. Under its new leadership, WWA is highly confident in its ability to continue to provide high-quality reliable water service to its customers.

Wasshington Water Autority

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