Arkansas Freedom of Information Act

Part 3 - Thou Dost Protest Too Much

During the last several months, I have submitted numerous Arkansas FOIA requests to the Mountain Home School District for documents and communications.  I do plan on cataloging and publicly posting all of them when my time allows for it. The FOIAs have included requests for documents related to the old high school building, the proposed high school, the state’s analysis and findings of the project, any studies or assessments done to support the district’s project, communications between the superintendent and the board, communications between the district and the state division, and even information on the board members’ personal business transactions with the district in which they serve.

The school board and superintendent are protesting what they consider to be an excessive number of requests and have attempted to imply that the requested information was already readily available on the district’s website. I cannot speak to any FOIA requests by others, but none of the information I have requested has been readily available, and the requests have been reasonable considering the scope and complexity of the project, the volume of information involved, and the impact to the public. It is important that the public not abuse our rights under FOIA by submitting frivolous requests. Our freedom to gain access to public information must be respected and used judiciously.

Most school districts, when they embark on a big construction project that involves a millage increase and election, create a webpage on their district site to publish all information related to the project. In this case, the Mountain Home School District has not done so. You cannot search their site and find renderings, proposals, the structural engineer’s reports, communications from the state regarding the partnership, the State’s analyses, information on costs, etc. Nothing. The volume of FOIA requests could have been reduced significantly had they taken this simple, standard step of pro-actively publishing project documents for the public. The district gets a grade of “F” on transparency for not pro-actively publishing these documents.

The need for FOIA requests was also escalated by the February 6, 2023, presentation by the State when information on the Division’s findings was finally made public.  I and others were immediately alerted to the relevance of the new information and the fact it had not been previously disclosed or discussed by the board.  Again, the lack of transparency fueled the need for more FOIA requests to try and untangle the confusion created by the district’s secrecy about the state’s determination and findings. The district gets a grade of “F” in transparency for not disclosing this information to the public when they first became aware of it between August and October of 2022, and for withholding it from the public view until they were ready to set a second election in February.

Under Arkansas FOIA, public governing bodies are required to capture, at a minimum, audio recordings of all meetings.  You can see this requirement in the FOIA Handbook, page 37  which references Attorney General Opinion 2012-022, which can be found by a search on the AG’s Opinion Search here.  On January 10, 2023, I submitted a request for the school board’s audio recordings, and Superintendent Long responded to my request by posting these recordings on the website alongside the board agendas and meetings. Prior to this FOIA request, these posted recordings were only available to the public by request, and most people were not aware they even existed.  Here is a screenshot of the request for the recordings:

And the school’s response here:

Many other public entities have voluntarily exceeded the minimum requirement under FOIA by video-recording meetings and publishing them for the public to view. This makes meetings fully accessible for parents and the community who have busy schedules or other limitations and may not be able to make the in-person board meetings.  This school district has performed the absolute bare-minimum, as required by law. They get a grade of “D” in transparency for recording the meetings and fulfilling the bare minimum requirement. An “A” grade would be going above and beyond by live-streaming, video recording the meetings, and publishing them for the public in perpetuity. That would be full transparency.

The purpose of Arkansas FOIA is to protect freedom and ensure transparency.  It establishes a baseline for minimum transparency, which includes open records and open meetings, but it does not limit public governing bodies from exceeding these minimum standards. A governing body that truly embraces transparency will go to great lengths to open their windows and let folks see how the sausage is made. They will make meeting agendas available for the public a minimum number of days before board meetings, so the public has an opportunity to view what will be discussed and make plans to attend if there is a topic of interest. The board’s decisions will be made in open meetings and not in individual discussions behind closed doors. The meeting minutes will reflect how each individual board member voted, so constituents know the actions taken by each board member and how they are representing the public’s interest. They will post static documents for the public on their website and if any revisions are made, they will include a revision date and a copy of the original document will still be accessible.  The public will have reasonable access to the board for questions and answers, and the superintendent will not be the lone gatekeeper to the board.  They will engage in discussion with the public, hear comments, and respond to questions. To date, this board has refused to engage in a Q & A session with the public on this high school project and millage increase. They have refused to answer questions submitted by email, after offering to do so.  These barriers to transparency are completely unacceptable from a public governing body.   

With so much disregard for authenticate transparency, and growing evidence that the board has likely violated Arkansas law, it is still unclear to me whether they simply do not understand FOIA, or whether they are intentionally refusing to comply with it. Either way, given the length of time they have served in a public capacity, and the number of hours of annual board training, if they do not know, they should have. 

The board and superintendent’s complaints about being pressed to comply with the law recalls the often-used phrase from the Shakespearean play, Hamlet, “Thou dost protest too much.”  The public has the freedom and the right to know the truth, to expect transparency, and to hold them accountable. Their fervent insistence that they are already fully transparent, likely indicates the exact opposite is true. 

MK

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Many documents and communications from the FOIA requests are posted publicly in a folder here, and more will be added in the future.