City of Fayetteville v. Edmark, 90-88

• Decision Date: 17 December 1990
• Docket Number: No. 90-88,90-88
• Parties: , 18 Media L. Rep. 1561 CITY OF FAYETTEVILLE and Scott Linebaugh, Appellants, v. Dave EDMARK and Donrey, Inc. d/b/a Springdale News, Appellees.
• Court: Arkansas Supreme Court

Page 275

801 S.W.2d 275

304 Ark. 179, 18 Media L. Rep. 1561

CITY OF FAYETTEVILLE and Scott Linebaugh, Appellants, v. Dave EDMARK and Donrey, Inc. d/b/a Springdale News, Appellees.

No. 90-88.

Supreme Court of Arkansas.

Dec. 17, 1990.

Walter R. Niblock, Katherine C. Gay, Fayetteville, for appellants.

David Olive, Fort Smith, for appellees.

BOBBY McDANIEL, Special Justice.

This case involves an appeal from an order of the Circuit Court of Washington County directing that legal memoranda prepared by outside counsel for the City of Fayetteville be released to the public under the Freedom of Information Act (FOIA). The trial court found the documents to be covered by the FOIA and ordered the appellants, the City of Fayetteville and its acting city manager, Scott Linebaugh, (City) to produce the documents to appellees, Dave Edmark and Donrey, Inc., d/b/a Springdale News (Donrey).

To comprehend the complexity of the facts and issues presented here, a detailed summary of events and litigation maneuvering is necessary. The circumstances underlying Donrey's request for production of documents relate to an undertaking by the City as part of the Northwest Arkansas Resource Recovery Authority (Authority) to develop and operate an incinerator and a landfill. In short, the City issued bonds, without an election, in the amount of approximately $22,000,000 and let contracts to construct the incinerator. After the Authority issued the $22,000,000 in bonds, which had been unconditionally guaranteed by the City, the public voiced strong opposition to the incinerator and landfill and voted to reject the project. The Authority then proceeded to cancel contracts and to attempt to repay the bonds, but found it was approximately $7,000,000 short of funds to repay the bondholders.

Although the City had a regular city attorney, the City retained outside counsel due to the complexity of the circumstances surrounding the disengagement process and potential litigation. The City is represented by attorneys of McDermott, Will & Emery (McDermott) based in Washington, D.C., and the Niblock Law Firm of Fayetteville, Arkansas, (Niblock) and they have been paid approximately $400,000 of public funds for fees and expenses. The attorneys have generated extensive documents analyzing the legal circumstances and potential litigation issues; Donrey filed an FOIA request seeking disclosure of these legal memoranda.

A separate suit was filed in the Chancery Court of Washington County and is referred to as the "incinerator litigation," Robson v. City of Fayetteville, et al., (E-89-1170), and was assigned to Judge Oliver Adams. It challenges, among other things, the authority of the City to guarantee bonds of this type and attempts to invalidate an ordinance passed by the City to raise sanitation fees to cover the $7,000,000 shortfall on the bonds. The City sought a protective order from Judge Adams to block the FOIA request of Donrey. Judge Adams denied the motion for a protective order on the grounds that the proper parties were not before the court and, thus, the court lacked jurisdiction. The appellees were not parties in that action. No appellate relief of this denial was sought by the City.

The City then filed an action against Dave Edmark, the Springdale News, and others for declaratory judgment in the Chancery Court of Washington County (E-89-1443). Judge Thomas F. Butt denied the petition for lack of jurisdiction. The record reflects that the City filed a notice of appeal in the chancery court and ordered a transcript; however, the appeal was not pursued.

The prosecuting attorney, in the Circuit Court of Washington County, Criminal Division, issued a prosecutor's subpoena for the documents covered by the Donrey FOIA request (CR-90-1). The City filed a motion to quash the subpoena and a protective order was issued by Circuit Judge Mahlon Gibson prohibiting, inter alia, the prosecutor or his staff from releasing any of the documents produced. The documents produced to the prosecutor are the same documents at issue in this case and were examined by the trial court in camera. Judge Gibson, as acknowledged by the record and counsel for appellants, left open the issue of Donrey's right to proceed in circuit court, civil division, to obtain FOIA documents.

After the protective order to the prosecutor was issued, Donrey renewed its FOIA request. Upon refusal by the City to comply, Donrey filed suit in the Circuit Court of Washington County, Civil Division, (CIV-90-0043), to obtain the documents. The City opposed the petition asserting that the documents were not in the possession of the City, were not "public documents," the documents would not assist the public in judging the performance of the public officials, the criminal protective order barred the release, and the release of the documents would violate the City's right to a fair trial in the incinerator litigation. This appeal is from Circuit Judge Kim Smith's order that the documents be disclosed.

The FOIA was originally enacted in 1967 and is now codified at Ark.Code Ann. § 25-19-101 through 25-19-107 (Supp.1989). Unlike many cases involving statutory interpretation, the FOIA specifically states the legislative intent.

§ 25-19-102--Legislative intent.

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.

The intent of the FOIA establishes the right of the public to be fully apprised of the conduct of public business. The first case interpreting the FOIA was Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), in which this court held that there was no attorney-client privilege concerning FOIA information. Laman has served as the benchmark for the interpretation of the intent of the FOIA and provides the perspective from which we view the legislative intent. This court said:

As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public.... We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.

The language of the act is so clear, so positive, that there is hardly any need for interpretation....

Laman, supra.

Therefore, the points of error raised by appellants must be viewed in the light of the clear intent and purpose of the statute.

I. PUBLIC RECORDS

Points I and II challenge the findings by the trial court that the legal memoranda prepared by the outside attorneys, McDermott and Niblock, are documents within the coverage of the FOIA. Appellants first contend that the extensive legal memoranda are not "public records," subject to disclosure. They contend that a) the requested memoranda do not constitute a record of the performance or lack of performance of official functions; and, b) the City's outside counsel are not "agencies" supported by public funds. This argument is without merit.

Although not binding as precedent, an Attorney General's Opinion, (89-095), concluded the memoranda were public records and subject to the FOIA. The trial judge, Hon. Kim Smith, stated, "... I think it would be ludicrous for us to say these aren't public records...." We agree.

"Public records" is defined in the FOIA at Ark.Code Ann. § 25-19-103(1) (Supp.1989):

"Public records" means writings, recorded sounds, films, tapes, or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

The memoranda include extensive evaluations of the propriety of the decisions and actions undertaken by City and Authority officials. For example, one document details the specifics in which the final contract varies from the terms approved by the City's board of directors. Another record analyzes the constitutionality of the City's undertaking to unconditionally guarantee the bonds issued by a separate entity, i.e., the Authority. The memoranda clearly could be used to evaluate the performances and decisions of the city officials, the city attorney, and Authority officials.

Counsel for the City conceded that if the documents were in the possession of the regular city attorney, instead of outside counsel, they would be subject to production under FOIA, unless the City could prevail on its arguments relating to the protective order and the fair trial issue.

In Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987) documents from the litigation files of a state agency's deputy general counsel were held subject to FOIA. This court rejected the agency's argument that the litigation files were not subject to FOIA disclosure on the grounds of A.R.E. Rule 502 (lawyer-client privilege) and ARCP Rule 26(b)(3) (attorney work product) since there is no statutory exemption for the attorney-client privilege or attorney work product. See Ark.Code Ann. § 25-19-105(b) (Supp.1989). Similarly, the legal memoranda presented to the trial court and reviewed in camera here are in the nature of litigation files and, as such, are "public records" within the meaning of the FOIA.

II. POSSESSION OF THE DOCUMENTS

The City's second contention that the records are not in its possession and are thus not subject to disclosure is also...