FOIA violations

That student-on-student sexual abuse scandal continued to play out the other day when Circuit Judge Doug Martin ruled the Huntsville School District Board violated the state’s Freedom of Information Act on multiple occasions, which could wind up costing taxpayers there some hefty court fees.

And who was on the victorious end of that court battle? Joey McCutchen of Fort Smith, of course.

He’s become our state’s leading bulldog barrister for holding FOIA violators accountable.

As I’ve previously written, I wouldn’t want McCutchen on the opposing side if I’m trying to defend against FOIA violations such as those he’s repeatedly documented on behalf of his clients.

One obvious problem with our FOIA is that too many public officials easily violate it with minimal if any real consequences to themselves. Has no one adequately informed these violators they are elected to do the public’s business in front of the public?

In the Huntsville FOIA case, the judge issued two orders.

“There are multiple violations in the first agreed order,” McCutchen told me. “They are clearly spelled out.”

The offenses were for multiple violations of not providing legally required notice of meetings to the media, failing to record training sessions concerning provisions of Title IX that were relevant in the students’ sexual assault offenses, and discussions about millage revenue in which they failed to maintain recordings as well as text messages on the topic of masks (they agreed not to do it again).

That’s nice, but, isn’t that sorta like a speeder caught by radar agreeing not to speed again?

“They also failed under an FOIA request to produce board members’ text messages for us which previously had been provided to Ellen Kreth, publisher of the Madison County Record via her FOIA request,” he said.

“Judge Martin enjoined the district from similar future violations and ordered mandatory training. The district was a day outside that court order for their required training, then only did less than an hour of training after a last-minute inquiry from Kreth.”

Unlike most FOIA cases he’s won, McCutchen says he will ask the court in the Madison County matter to award attorney’s fees, hopefully as a deterrent to future dismissive conduct.

His policy over the last decade had been to waive such fees in most FOIA victories because he realized innocent taxpayers wind up stuck with the tab. It’s a different story in Huntsville where the violations were so flagrant.

It’s enough to make me wonder whether these districts retain attorneys that keep their board members on the straight and narrow regarding FOIA. If so, cases like these lead me to believe some are being paid way too much.

To me, the Huntsville scandal shouts how badly our Legislature needs to put the ineffective FOIA penalties aside and perfect a law to hold individual wrongdoers personally liable, while adding more effective punishment provisions.

“I’m proud to say I worked with state Rep. Vivian Flowers in the 2019 legislative session to help pass the amendment to FOIA which mandates public meetings be recorded and maintained by a public entity for a minimum of one year,” said McCutchen.

Now our Legislature needs to pass an act requiring FOIA training for all groups who serve in the public interest.

“Kudos to Representative Flowers are deserved,” he added. “The law comes into full force in these multiple egregious violations.”

Speaking of other needed punishment provisions, McCutchen’s FOIA client Ben Rightsell (who, incidentally, is seeking a Huntsville School Board seat to make the district more accountable and transparent), in addition to his civil case, filed an FOIA criminal complaint in Madison County last October.

Meanwhile, Huntsville resident Rebecca Nelle asked 4th Judicial District Prosecutor Matt Durrett — who after public backlash reopened a criminal case concerning educators legally mandated to report child abuse in the Madison County School District — to prosecute responsible mandated reporters who failed to do so. That includes Superintendent Audra Kimball.

“I believe Ms. Kimball should be charged under ACA Section 25-19104, with a Class A misdemeanor for negligently violating FOIA,” said McCutchen.

To that I’d add: Why wouldn’t she be, in light of her leadership position as the district’s superintendent?

The bottom line, valued readers, is that until prosecutors in our state have the political courage and will to pursue criminal prosecutions against those who negligently and willfully violate our FOIA open records and meeting provisions, this widespread lack of transparency will continue.

If there was ever an egregious example of local government thumbing its nose at our sunshine law that requires swift and vigorous prosecution, this nationally notorious Madison County case of middle school students allegedly sexually abusing classmates for sport in their locker room fits the bill.