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Thomas Sissom, FOIArkansas Project

David Clinger

It is rare for a prosecutor to take an alleged criminal violation of the Freedom of Information Act to trial; what happened in Eureka Springs may be part of the reason.

Circuit Judge David Clinger handled the first criminal FOIA case while serving as prosecuting attorney in the 19th Judicial District, which includes Eureka Springs.

A complaint was lodged against Mayor Don Thurman and five Eureka Springs alderman, accusing them of violating the FOIA during an executive session at a Nov. 20, 1984, meeting. The law allows executive sessions only for discussion of personnel matters.

Thurman, along with aldermen Richard Kelley, Thomas Griffin, Dave Drennon, Jane Griffith and William King, were charged. King pleaded guilty and was fined.

Testimony of some witnesses during the trial contradicted their earlier sworn statements and the jury deadlocked after 4 1/2 hours of deliberation, unable to reach a unanimous verdict.

Judge John Jennings declared a mistrial and the charges were later dropped.

Clinger said in a recent interview that a criminal prosecution of an FOIA violation is difficult at best and nearly impossible at worst.

“Absent a smoking gun, an FOI criminal prosecution is very, very difficult,” Clinger said. “Ordinarily, your defendant is an elected public official, a member of the city council, a school board or the quorum court. They’re usually respected members of the community and it’s a difficult proposition to get a jury to agree to a verdict on an intentional violation.”

Clinger said the Eureka Springs case seemed to hinge on the jury’s view of whether the violation was intentional.

One juror, interviewed just after the trial, said she was convinced the defendants didn’t intentionally violate the law. Also, Clinger said, Eureka Springs was, and is, a community of “factions,” that makes it difficult to gain a unanimous verdict involving political figures.

In the 1985 trial, the jury ended with seven guilty votes to five innocent votes on two defendants, and split evenly, six to six, on the other three. Earlier counts had more guilty votes, according to news reports after the trial, but the jury was never near a unanimous verdict.

While the FOIA can create “political headaches” for prosecutors, Clinger said he supports the law and is in favor of keeping criminal penalties.

“It’s a tough hill to climb,” he said. “I’m confident we had a good case or I would not have proceeded to trial with it. After the hung jury, I dismissed the case, because I thought I’d put on the best case we could.

“I would not advocate doing away with the potential for criminal violation of the law,” Clinger said. “If you had a strong case I think it’s worth pursuing.”

It may be difficult to successfully prosecute a violator of the FOIA, Clinger said; but the law should remain as a “deterrent for complete and intentional disregard” of the law.