Arkansas Supreme CourtA fractured Arkansas Supreme Court today opened the door for private discussion of public business by e-mail, though it could have been worse had a couple of justices had their way.

The case was an appeal by Fort Smith of a lower court ruling that the Freedom of Information Act provision relating to open meetings had been violated when three city directors and the city administrator discussed by e-mail changing civil service rules on police promotions.

No final decision was reached in the exchange of e-mails. But the e-mails discussed various options, city directors expressed preferences and, ultimately, in a public meeting, adopted something one of the directors had advocated.

In an opinion written by Justice Courtney Goodson, the Supreme Court rejected the city’s argument that an exchange of e-mails could not be deemed a meeting. The court long ago held that private telephone conversations were meetings and it said today there was “no material difference” between telephone discussions and e-mail discussions.

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But the court was amenable to the city’s argument that the emails were for “background” and did not produce a decision. The court said the case was analogous to an earlier case from Fort Smith in which a city director distributed a copy of a proposed ordinance and recommended its passage, with other directors volunteering opinions. But no decision was sought or made, the court said in upholding that occurrence.

Chief Justice Dan Kemp and Justice Karen Baker joined Goodson in the totality of her opinion.

The other four justices split in three opinions.

Justice Jo Hart agreed that email couldn’t be distinguished from phones for purposes of avoiding the FOI. But she also said this finding could be “illusory” given the exemption given based on content.

 Perhaps unwittingly, the majority has imposed a requirement that, to constitute a meeting, an email must: (1) directly solicit a response; (2) render a decision; and (3) involve more than three-sevenths of a city’s board of directors.  Worse still, these determinations will almost certainly require a lawsuit to resolve.

(I’m with Justice Hart. It will be a simple matter to effectively poll a question in private and discuss pros and cons without presenting the issue in the form of a question, then meet publicly to ratify a consensus.)

She wrote:

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Today’s majority opinion denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret.

Justice Robin Wynne also wrote separately to object to the content standard while agreeing that e-mail discussions weren’t a way around the open meetings law.

 I believe that appellants engaged in a group discussion of public business over email that violated the open-meeting provisions.

Justice Shawn Womack wrote a dissent in which Justice Rhonda Wood joined.

They said because the law doesn’t specifically mention e-mails, they can’t be interpreted as violating the open meetings law.

While there may very well be legitimate policy reasons to include emails and other electronic communications in the public meeting definition as technology advances, our role as judges is to determine what the law is not what the law should be.

Womack and Wood effectively created a five-member majority for the considering content of emails. Womack wrote:

I agree with the majority that, based on the facts specific to this case, the emails exchanged here clearly do not establish a meeting for the purposes of the FOIA.

The Supreme Court once stood firmly and unequivocally for the proposition that public business should be discussed in public. There’s now wiggle room.