BRANCH -- A Fort Smith-based attorney plans legal action against a Franklin County city for reportedly not recording its public meetings as required under the state's updated Freedom of Information Act.
Attorney Joey McCutchen said he filed a lawsuit against Branch in Franklin County Circuit Court on behalf of his client, resident J.B. Turner.
McCutchen said Jan. 31 Turner, who is active in Branch city government, sent the city a Freedom of Information Act request Dec. 5 asking for recordings of City Council meetings from May through November. The city reportedly responded it didn't have any recordings, which makes it appear it hasn't been recording its public meetings as it's required to do under state law, McCutchen said.
Turner requested the recordings because he felt the written minutes the city produced of these City Council meetings were inaccurate, according to McCutchen. Turner believed he was misquoted on a particular issue.
McCutchen argued there isn't any "guesswork" concerning what someone said during a meeting if the meeting is recorded.
The Arkansas Legislature approved Act 1028 during its 2019 regular session, according to the Legislature's website.
The act amended the Freedom of Information Act of 1967 to require all officially scheduled, special and called open public meetings be recorded in a way that captures sound. This includes, but not limited to, an audio recording, a video recording with sound and picture or a digital or analog broadcast capable of being recorded.
Act 1028 also requires a public entity maintain such a recording for at least one year from the date of the meeting in a format that may be reproduced for the public upon request. The act became fully applicable to first and second class cities, as well as incorporated towns, on July 1, 2020. However, it doesn't apply to executive sessions and volunteer fire departments.
McCutchen said through this lawsuit against Branch, he and Turner want to send a message to the city and other governing bodies it's important they record public meetings in accordance with Act 1028.
Gerald Harris, mayor of Branch, said Feb. 2 he wasn't aware of the change in the Freedom of Information Act that Act 1028 required. He said the city will follow the act in all future public meetings.
Accessibility
The lead sponsor of Act 1028, Rep. Vivian Flowers, D-Pine Bluff, said in the Aug. 21, 2020, edition of Arkansas Publisher Weekly she filed the original bill after a constituent told her their concerns about inaccuracies in the meeting minutes of an unspecified local governmental entity. She said minutes are "extremely formal" documents that may briefly summarize what government leaders took two hours to debate and cut out important comments.
In contrast, recordings would be able to contain entire meetings and, by extension, additional nuance and context, according to Flowers. She told Arkansas Publisher Weekly equipment or maintenance costs "shouldn't be a factor."
"Things are just so accessible now," Flowers said. "Friends, family and employees are expected to be available because they know you have a smart phone, but we're not making our government nearly as accessible."
"Hearing audio and seeing video makes the experience of getting to know people in leadership much more honest, much more personal and much more specific than reading one page of notes."
Flowers said Act 1028 would benefit journalists in particular by giving them a means to go back and figure out what happened, or who said what, during public meetings.
Flowers, along with the Arkansas Municipal League, didn't respond to requests for comment for this report made about a week ago. Flowers was contacted through phone and email while Mark Hayes and Whitnee Bullerwell, executive director and deputy director respectively of the Arkansas Municipal League, were contacted over the phone.
River Valley FOIA
Every city and town in Crawford, Franklin, Sebastian and Logan counties, as well as the counties themselves, were contacted via email and telephone to see where they each stood in following Act 1028.
In Crawford County, Van Buren, Alma, Mulberry, Cedarville, Dyer, Kibler, Mountainburg and Chester reported recording all their public meetings in keeping with the law.
Sherry Belt, secretary/treasurer for Chester, said the town began recording its City Council meetings June 9, 2020. She explained a councilman sets up the city's recording device for each meeting, the audio files of which are then stored on a city office computer and an external backup drive.
Any member of the public who wants a copy of a recording can request one by contacting Belt or Mayor Lacey Hendrix.
"It may take two days to get it for them as we have full-time jobs outside of this job," Belt said. "The requested meeting recording would be copied to a thumb drive. At this time, we do not have a website for the town of Chester, but Mayor Hendrix is currently working on one."
Khris Miller, city clerk/treasurer for Alma, said his city usually records all its council meetings by live-streaming them to the city's YouTube channel. However, it resorts to recording audio of the meetings when faced with technical issues. It has done this since Jan. 15, with recordings being available either online or through the Dropbox file hosting service.
"We try to record other meetings, such as A&P Commission, Planning Commission and public hearings," Miller said.
Robert Porter, mayor of Dyer, began recording both its regular and special public meetings by way of a digital recorder in January 2020.
"I do have plans to eventually improve upon our recording capabilities by installing a wide-shot camera and one microphone for each elected official, and live-stream each meeting, though that has not occurred as of this date," Porter said Jan. 31.
Franklin County also records all its public meetings, according to County Clerk Tammy Sisson. Sisson said she puts all the recordings on her computer and makes them available upon request on a thumb drive.
"I will also add there has been a time where my recorder ran out of battery and the meeting did not get fully recorded," Sisson said. "But other than that, everything that is required to be recorded is recorded."
One of Franklin County's seats, Ozark, conducts all its open public meetings in its city hall/police training room, where they are recorded automatically, according to City Attorney R. Kevin Barham. The city prefers all requests for recorded media be in writing.
Paul Lee, the mayor of Denning, said his town keeps the minutes for any and all public meetings it has had there on file. He didn't respond to a follow-up email inquiring if Denning records these public meetings in a way that captures sound.
In Sebastian County, Fort Smith links videos of its city Board of Directors meetings on its website. However, the city is in the process of upgrading the website, with the most recent regular meeting video available as of Thursday being from Sept. 20.
Barling has similarly posted videos of its Board of Directors meetings to its Facebook page, but the most recent video uploaded is Aug. 2, 2021.
Greenwood, meanwhile, continues to upload videos of its City Council meetings to the city's YouTube channel, links to which are available on its website. Audio files of these meetings are also available through the City Clerk/Treasurer's Office.
Audio recordings of Sebastian County Quorum Court meetings can be found on the county website.
In Logan County, Daniel Rogers, mayor of Paris, said the city clerk records audio of its public meetings. The city also has a resident who records video of all the Paris City Council meetings, as well as other meetings that have significant public interest, and uploads the files to YouTube.
All Booneville City Council meetings are recorded in both audio and video formats, according to Stacy Holbert, who holds the council's Ward 2, Position 1 seat. More than a year's worth of recordings is online on Facebook.
"We have recently purchased better recording equipment and hope to have that set up and running in the next couple of months so that we're able to utilize that as well," said Rain Orr, Booneville deputy city clerk.
However, not every governmental entity in the River Valley provided insight into whether they follow Act 1028. Some -- Rudy, Charleston, Scranton, Caulksville and Morrison Bluff -- declined to answer questions. Others -- Wiederkehr Village, Magazine, Subiaco, Ratcliff, Hackett, Huntington, Bonanza, Midland and Central City -- couldn't be reached over the phone with the phone numbers available for them and didn't respond to emails.
In addition, Logan County, Blue Mountain and Hartford didn't return phone calls and email requesting information. Contact was also made with Crawford County and Altus, but neither responded by deadline Thursday afternoon.
Population
Branch had a population of 296 as of April 1, 2020.
Source: U.S. Census Bureau