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Brenda Blagg, FOIArkansas Project

SPRINGDALE — The most recent legislative scuffle over the Freedom of Information Act came early this year when a Northwest Arkansas lawmaker tried to amend the law to legalize private meetings between two members of a governing board.

A request by Kurt Anderson, a member of the Washington County Quorum Court, led to proposed legislation intended to amend the Arkansas FOI Act. The bill, by state Rep. Andrew Morris, R-Springdale, was eventually withdrawn.

Although the lawmaker, state Rep. Andrew Morris, R-Springdale, pulled his bill before the end of the legislative session, a subsequent opinion from Attorney General Mark Pryor effectively cleared the way for some private meetings between board members.

The way the bill developed and triggered an attorney general’s opinion in this instance is typical of how such questions have arisen over the life of the FOIA in Arkansas.

In January, a new member of the Washington County Quorum Court told his colleagues in the first meeting of their new term that he didn’t see any reason why he couldn’t talk with another justice of the peace without violating the Freedom of Information Act.

When others, including his county attorney, didn’t interpret the FOIA as he had, Justice of the Peace Kurt Anderson, R-Springdale, enlisted Morris’ help to try to change the law.

The FOI Act requires that most meetings of public governing bodies be public meetings. The law requires notice of regular meetings to anyone who requests the information and, in the case of emergency or special meetings, requires notice to news media.

The definition of “meetings” has been extended through court decisions on the FOIA to apply to committees of public bodies, but there is no case law on whether two members of a governing body may meet privately to discuss business that may come before the governing body.

Anderson contended that he should be able to call another JP to ask or answer questions about pending business.

Advised at the time by the county attorney not to have such one-on-one conversations with other JPs, Anderson then asked Morris to sponsor legislation to amend the FOI Act specifically to allow two members of the same governing board to meet privately.

The bill drew strong opposition, largely from the media, and Morris withdrew it from House consideration. However, state Sen. David Malone, D-Fayetteville, had in the meantime requested an opinion from Pryor’s office on the question of one-on-one meetings of board members.

The opinion, issued March 22, after Morris had pulled his bill, concluded that the intent of the participants — not their number — determines whether members of public bodies may meet privately to discuss public business.

Malone had asked the attorney general if either a planned meeting or “a casual or by-chance” meeting between two quorum court members to discuss official business violates the FOI Act. He also questioned whether telephone conversations or e-mail between two court members violates the law.

Pryor answered that the questions “cannot be conclusively answered without considering all of the facts and circumstances surrounding the particular meeting.” But he agreed with prior opinions from the attorney general’s office that the number of attendees at a meeting does not, in and of itself, determine whether the FOI Act applies.

“I believe the inquiry will focus, instead, on the extent to which the facts suggest the potential evasion of the FOIA,” wrote Pryor.

Washington County Attorney George Butler, who had asked Malone to get the AG’s opinion, said later that Pryor’s opinion actually raised more questions than it answered. But, Butler concluded that a meeting of just two members of the Quorum Court could, in Pryor’s opinion, violate the FOI Act.

``It all depends on the surrounding circumstances of each incident,” Butler said.

Unless the meeting is done to circumvent the FOI, it is not a violation under the opinion issued by Pryor, Butler said, adding that a private meeting could legally involve even more members of the Quorum Court.

“You’ll have to get inside people’s heads (to determine if a violation occurs),” he said.