Commercial Printing Co. v. Rush
| Decision Date | 11 April 1977 |
| Docket Number | No. 76-98,76-98 |
| Parties | , 2 Media L. Rep. 1951 COMMERICIAL PRINTING COMPANY and Katherine Gosnell Wells, Appellants, v. Marshall N. RUSH et al., Appellees. |
| Court | Arkansas Supreme Court |
Coleman, Gantt, Ramsay & Cox by William C. Bridgforth, Pine Bluff, for appellants.
Jim Guy Tucker, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, Wade, McAllister, Wade & Burke, P. A., Fayetteville, Bridges, Young, Matthews & Davis, Pine Bluff, for appellees.
WILLIAM C. ADAIR, Jr., Special Justice.
At a meeting of the Board of Corrections of the State of Arkansas, Appellees herein, on October 25, 1975, an executive session was called and the public excluded therefrom. Katherine Gosnell Wells, Appellant, a reporter for the Pine Bluff Commercial owned and operated by the Appellant Commercial Printing Company was present, objected to the calling and holding of the executive session, and was ejected over her protest from the meeting. One member of the Board, Mr. Lynn Wade, opposed the Board's decision to go into executive session and refused to participate therein and by separate counsel has filed an Appellee's Brief in support of the Appellant's argument. The executive session was called to discuss personnel matters, specifically the possible dismissal or disciplining of Department of Correction employees in connection with alleged wrong doing by these employees that had arisen after an inmate under their supervision had died.
Appellants Commercial Printing Company and its reporter, Katherine Gosnell Wells, sought a declaratory judgment declaring that the executive session held by the Board of Correction on October 25, 1975, was in violation of the Freedom of Information Act as set forth in Arkansas Statutes Annotated, Title 12, Chapter 28 (September, 1967). A hearing was held and subsequently the lower court after reviewing a taped recording of the executive session ruled that the session was in accordance with the Freedom of Information Act as to the subject matter discussed. The Court also ruled, however, that the Board had violated the Freedom of Information Act when it called Department of Correction Commissioner Hutto and Cummins Superintendent Lockhart into the executive session at various times.
Appellants then filed a motion seeking to have the Court make public the tape recording and any transcript thereof on file be made immediately public. The Court denied the motion citing in its opinion that the subject matter of the session was proper within the Freedom of Information Act.
From the lower court's judgment declaring that the subject matter of the executive session was proper and its refusal to make the tape recording of the session public, Appellants bring this appeal.
The issues presented in this appeal are directed to the historic legal concepts of the "public's right to know" versus the protection of the "rights of the individuals" involved. The Legislature has clearly expressed its intent concerning the policies of the Freedom of Information Act and the declared public policy of this State dealing with the public's business in Ark.Stat.Ann. Section 12-2802:
This Court has declared: "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 praise-worthy purposes may be achieved." Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753, 755 (1968).
The Legislature has provided for both the public's right to know and protection of the individual's rights from unwarranted adverse publicity and ensuing damage to individual's reputations in Ark.Stat.Ann. Section 12-2805 (Repl.1968) providing:
The policy reasons dictating the rule of liberal construction of the act does not mean that the equally praiseworthy policy considerations which motivated the General Assembly to provide the single exception permitting executive sessions, i. e., for the purpose of discussing and considering personnel matters, are not equally meritorious, or are to be any more lightly regarded. The Act as a whole should be construed with reference to the public policy or policies it was designed to accomplish. Arkansas Tax Commission v. Crittenden County, 183 Ark. 738, 38 S.W.2d 318 (1931). A statute must be analyzed in its entirety and meaning given to all portions. Construction of a statute which gives meaning and consistency to its various sections is desirable. Callahan v. Little Rock Distributing Company, 220 Ark. 443, 248 S.W.2d 97 (1952).
Appellants earnestly urge with respect to the executive session in the present case that, "only after all of the discussion which took place in private had taken place in public and all of the information furnished and comments elicited should the Board of Correction have adjourned to executive session to determine if discipline was in order for particular public officers or employees." If this interpretation of the executive session provision of the Freedom of Information Act is given effect, that section would be rendered virtually meaningless; and the legislative intent would be frustrated. A public discussion of allegations later proved unwarranted would lead to adverse publicity and unjustifiable damage to the reputation of the individuals involved. It is not the bare decision whether or not to discipline an employee that the executive session provision allows to be made in privacy, but rather the discussion or consideration of particular acts or omissions of the employee whose conduct has been called into question. This is the only way to avoid the "great and often unjustified damage to personal reputations, which such provisions are intended to prevent". COMMENT, 75 Harv.L.Rev. at 1208 (1962)
The ultimate fact, the employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee should be public, and the public apprised of the official acts of their elected and appointed public officials. At this time the public officials' actions would be open to question and the evidentiary facts supporting the actions of the public officials be questioned and made known to the public.
Section 12-2805 further provides that, "Executive sessions must never be called for the purpose of defeating the reason or the spirit of the Freedom of Information Act." The executive session under consideration in the present case was not called for that purpose. It was called for the purpose of discussing a personnel matter, and the discussion was carefully limited to the conduct of specific prison employees in relation to the death of an inmate. It is true as Appellant points out in its brief that general items were discussed concerning (1) Heat stroke symptoms and policies of the prison relating to the recognition of and treatment of such symptoms; (2) Assignment procedures in connection with inmates relating to work detail; (3) Policies for reevaluation of medical reports; (4) Procedures for interviewing transferred inmates; (5) Procedures dealing with transfer of information from officers at the Cummins unit to officers at the Tucker unit; (6) Work habits and propensities of deceased inmates; (7) Prison policies concerning meals, especially relating to inmates being transferred in early morning hours from one unit to the other; (8) General harassment; (9) Procedures for handling inmates who will not work; (10) The composition of hoe squads; (11) Procedures dealing with transfer runs and transfer vehicles; (12) Questions asked of Commissioner Hutto and Superintendent Lockhart concerning the death of the inmate involved; (13) The State Police investigation into the death of the inmate in question; (14) Certain medical questions. However, this information was discussed within an overall general context of whether there had been any violation of board policies and procedures within which public disciplinary or other public action should be taken. The board could not make an informed decision as to discipline or any other action without this candid examination of the facts and free discussion of the board policies. No official acts of the board were taken in executive session. The Legislature has specifically provided for this discussion. "Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee." Ark.Stat.Ann. Section 12-2805 (Repl.1968). We agree with the following excerpt from the Opinion of the lower court:
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