Palestine and Wheatley, Arkansas, shown on map. (Google Maps)
Last month, the Times-Herald newspaper in Forrest City won a criminal case against the Palestine-Wheatley School Board brought against its members for meeting in secret to interview a candidate for interim school superintendent.
That’s some rare good news for enforcing Arkansas’ Freedom of Information Act, which protects the public’s right to observe public officials in action and to inspect public records.
Tamara Johnson, the Times-Herald publisher and editor, filed her complaint against the school board in September last year, but the case wasn’t resolved until July. The First Judicial District Prosecuting Attorney’s office declined to prosecute the case, and several local judges recused themselves, according to the Arkansas Press Association Publisher Weekly newsletter.
Not until the city attorney of Forrest City agreed to serve as prosecutor and a retired circuit judge from Osceola agreed to hear it did the case move forward, sort of. After several continuances, attorneys reached an agreement for school board President Derrick Boileau to plead no contest to the misdemeanor charge, the APA newsletter reported.
The board president was placed on six months probation and ordered to attend mandatory training on the FOIA provided by the Arkansas School Boards Association, according to a court order dated July 31. Charges against the other six board members were set to be dismissed, the prosecutor said, but they must also attend the training.
The board members will have one year to complete the training, or the original charges can be refiled.
Johnson told the APA the secret board meeting was one of a series of problems she’d had with the board concerning how it operated, particularly regarding meeting dates and agenda items.
“What I really wanted all along was for them to take some training on the Freedom of Information Act,” she said.
The Times-Herald’s victory marks only the second time I know of that a newspaper has managed to successfully bring charges against a public entity or official for violating the Freedom of Information Act. Local prosecuting attorneys almost never agree to prosecute criminal complaints of FOIA violations, and almost all serious infractions of the FOIA tend to be resolved through lawsuits or negotiation.
The first FOIA criminal complaint I’m aware of involved an Arkansas Democrat-Gazette reporter in 2014 and Rodney Forte, who was then the executive director of Little Rock’s public housing agency. The Pulaski County Prosecuting Attorney’s office pursued the case. After a bench trial, a Little Rock district judge in 2015 found Forte guilty of failing to produce public documents the newspaper requested. He was ordered to pay a $100 fine and $140 in court costs. Forte appealed the verdict to Pulaski County Circuit Court and asked for a jury trial. The jury acquitted Forte, annulling the conviction.
A violation of the FOIA is a Class C misdemeanor punishable by up to 30 days in jail and a fine of up to $500. Not exactly harsh, but not chicken feed, either.
Unfortunately, elected prosecutors are extremely hesitant to accept and pursue charges against fellow elected officials, especially in small towns and rural counties where all the politicians know one another really well.
So citizens depend on newspapers like Johnson’s to be at meetings and tell them what’s going on with public bodies. It falls upon vigilant and tenacious journalists like her to hold public officials accountable when they flout the FOIA.
“You don’t do something like this unless you are prepared to go the whole way,” she told the APA.
The public feedback, she said, has been positive.
“Maybe this case will send a message to other governing bodies that it is just as important to follow the FOIA as any other law in this state,” she noted.
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