Freedom of Information Act: Meeting Requirements. Presented by: Assistant Attorney General Reid Adkins

Transcription

1 Freedom of Information Act: Meeting Requirements Presented by: Assistant Attorney General Reid Adkins

2 Which Meetings Are Covered? A.C.A (a): all meetings of governing bodies of state boards, bureaus, commissions, or organizations shall be public meetings. Includes formal or informal, regular or special Supported wholly or in part by public funds or expending public funds Except as otherwise provided by law No grand juries

3 Special Considerations of Meetings (Part 1) No quorum required for meeting under FOIA s can constitute a meeting under certain circumstances (Op ) Public is entitled to attend not participate Reasonable access afforded to public (Op )

4 Voting: Special Considerations of Meetings (Part 2) Public must be able to see how each individual member votes No polling or secret telephone conferences No huddling while in deliberations

5 Governing Body vs. Advisory Body Governing Body: A body with final decision-making or policy-making authority Advisory Body: Exists only to make recommendations, collect information, or give advice

6 Types of Meetings (Op ) Regular: Presumably a meeting that has been regularly scheduled by a governing body Special / Emergency: Presumably a meeting necessitated by a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action by the governing body

7 Notice Requirements Regular Meeting Pursuant to Administrative Procedure Act Date, time, and location No less than 3 days before Agency website (if possible) Pursuant to FOIA Time and place to anyone who requests

8 Notice Requirements Special / Emergency Meeting Time and Place Two Hours Before Meeting to: News media in the county where meeting is held News media elsewhere that covers regular meetings That have requested to be notified of special meetings

9 Executive Session - Personnel Matters (Op ) Executive Session Permitted Only For The: Employment Appointment Promotion Demotion Disciplining, or Resignation of public officer or employee

10 Executive Session Procedure Notice requirements still apply Must announce specific purpose before going into executive session Must vote in public afterward or action is void

11 Executive Session Attendance By Right: All members of the governing body By Invitation: Interviewee for top administrative position The top administrator, immediate supervisor, and employee Cannot Attend: Everyone else, including attorneys

12 Enforcement of Covered Meetings Action is void if no public vote Noncompliance in other respects renders action voidable Court will only invalidate the action when: Opportunity to hold conforming meeting has been given; To vindicate public as opposed to private interest; Violation is substantial; and Violation is committed knowingly.

13 The Christmas Party Claud and Rudolph (both members of the Arkansas Elf Licensing Board) attend the annual Christmas Party. While at the Party, Claud and Rudolph discuss what disciplinary action to take against a licensed elf that has been naughty. Did this constitute a meeting under the FOIA?

14 It Depends on the Facts and Circumstances Was the social function used as a device to circumvent the FOIA? If yes, then it should be treated as a violation. Was the discussion of public business intermittent and incidental to the social function? If yes, then no violation.

15 The Christmas Party II At the Christmas Party, Claud and Rudolph reached the conclusion that the licensed elf had been extremely naughty and should have his license suspended immediately. Claud and Rudolph started a group text message with all the Board members asking them what their thoughts were on the situation. With the help of technology, the Board was able to reach a decision in minutes that potentially saved Christmas for Arkansas boys and girls. Do the text messages violate the FOIA?

16 YES Because the public was not able to monitor and observe the Board s deliberations in the group text messages that formed the basis for the Board s decision.

17 Finding Waldo The Arkansas Dept. of Thinkers and Doers formed a Search Committee to narrow the pool of candidates for a new director. After meeting for hours, the Committee finally narrowed it down to two candidates to recommend to the Board: Waldo and Odlaw. Do the FOIA notice requirements apply to the Search Committee s meeting?

18 YES Because the search committee has been delegated decisions-making authority to vet the pool of candidates.

19 Finding Waldo II The Arkansas Dept. of Thinkers and Doers formed a Search Committee for a new director. The Committee met one afternoon to go through the entire pool of candidates. At the next Board meeting, the Committee presented all the candidates to the Board and made recommendations. Do the FOIA notice requirements apply to the Search Committee s meeting?

20 It Depends on the Facts and Circumstances What is the composition of the subcommittee? Did the governing body delegate any decisionmaking authority to the subcommittee? Is the Board likely to rubber-stamp the subcommittee s recommendations?

21 Secrets Don t Make Friends At the Arkansas Secret Society Board meeting, the Chairperson of the Board announces to the public that the Board is going into executive session to discuss an employee s position. The Board invited the Executive Director to attend the executive session. When the Board reconvenes to vote, the Board announces it s decision to promote James Bond to 00 status. Does this executive session violate the FOIA?

22 It Depends on the Facts and Circumstances Was proper notice provided for the meeting? Is the purpose of the Executive Session permitted? Was the purpose of the Executive Session properly announced in public?

23 Secrets Don t Make Friends II At the Arkansas Secret Society Board meeting, the Chairperson of the Board announces to the public that the Board is going into executive session to consider disciplinary action of a particular employee. When the Board reconvenes, the Board announces it considered the disciplinary action of a particular employee, but did not reach a decision. Does the Board s announcement when it reconvened violate the FOIA?

24 NO Because there was no decision made by the Board that required a public vote.

25 Resources Arkansas Freedom of Information Handbook (17 th ed.) Watkins & Peltz, Arkansas Freedom of Information Act (5 th ed., 2009) Arkansas Attorney General s Website Board Member Handbook

26 AGLeslieRutledge AGRutledge AGLeslieRutledge ArkansasAG AGRutledge Attorney General Leslie Rutledge