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Rusty Turner, FOIArkansas Project

When a prosecutor in Arkansas finds that a citizen and a public official or agency are at odds over an alleged violation of the Freedom of Information Act, the case is not likely to go to court — at least not immediately.

In a survey of prosecuting attorneys by the FOIArkansas Project, 13 of 18 who responded said they usually attempt to resolve FOIA-related complaints before considering criminal charges. One prosecutor said such an occasion had never occurred.

The survey was mailed to all 28 of the state’s prosecutors Aug. 23, with a stamped return envelope addressed to Arkansas News Bureau in Little Rock.

Prosecutors indicated that most citizen-government conflicts can be resolved by explaining the FOI Act’s requirements to one or both parties. The resolution usually either causes the government entity to comply with FOIA or renders the complaint moot.

“In most of the (FOI) complaints I’ve dealt with, they (the complainants) don’t want anyone prosecuted, they just want the government to comply with the law,” said Chris Raff of Searcy, prosecutor for the 17th East Judicial District. “If whatever (government agency) it is would buck up and say, we’re not going to comply, then we’d get involved.”

Raff said his experience has been that a letter from the prosecutor advising a government official or entity of the requirements is enough to do the trick.

The Arkansas Freedom of Information Act is intended to guarantee public access to government meetings and records. It provides civil and criminal remedies for conflicts. A person found guilty of a criminal violation of FOI faces fines of up to $200 and up to 30 days in jail.

Only one prosecutor responding to the survey — Tom Gean of Fort Smith, 12th Judicial District — said his office had prosecuted an FOI case in the past 12 months.

Gean filed charges against the Fort Chaffee Public Trust in April 1998 for an open meetings violation, based on a complaint from a reporter at the Southwest Times Record in Fort Smith.

The newspaper reporter alleged that the trust had conducted a meeting behind closed doors that should have been public. In a plea arrangement, the trust was fined $100 and ordered to sponsor a Freedom of Information Act seminar in Fort Smith in conjunction with the newspaper.

Gean agreed that prosecutors, as a general rule, would rather resolve FOI conflicts before charging someone with a criminal violation. That’s an easier task, he said, when the conflict involves the release of public records. Alleged open meetings violations are harder to resolve after the fact.

“The problem comes up when there’s been a meeting that should have been public and it’s not,” said Gean. “There can be differences of opinion (on whether a meeting should be public). Charges would be filed when it’s clear cut that the meeting should be open and the (government) entity is in clear violation.”

At least one criminal case alleging FOI violations went to trial in Arkansas.

In 1985, 19th Judicial District Prosecutor David Clinger of Bentonville charged several members of the Eureka Springs municipal government with FOI violations. The case ended with a hung jury, though one councilman did plead guilty and paid a small fine.

Clinger, now a circuit judge, chose not to retry the case.

Other potential prosecutions have ended before trial. Half of the prosecutors who answered the survey, nine of 18, said they had closed investigations of FOI criminal complaints because the conflict was resolved prior to the filing of charges.

“Most of the time, (someone) really doesn’t understand the FOI at all,” said Bob McMahan, prosecutor coordinator for the state. “A lot of times just getting together and talking it out you can solve the problem.

“The requesting party usually gets what they want.”

Prosecutors said that even though they don’t prosecute many cases, they deal with the FOI Act on a regular basis. Half of the survey respondents have delegated a specific person in their offices to handle FOI issues.

All said they provide advice to government entities about their responsibilities regarding the FOI. All but three said their office had provided advice to citizens regarding the open records portion of the FOIA. Thirteen of 18 had provided advice to citizens related to open meetings.

Two prosecutors said they had been involved in civil proceedings involving the FOIA. Citizens can bring civil lawsuits to gain access to meetings and records through the law.

McMahan said newly elected prosecutors and new deputies get some training about the FOI Act through his office. The prosecutor coordinator’s office puts on a three-day training conference for newly elected prosecutors and appointed deputy prosecutors every two years. Freedom of information is one of the many topics the training covers, he said.