Court FOI Ruling May Force Cities To Redo Contracts
Last updated Wednesday, March 5, 2008 9:05 PM CST in News
By Bob Caudle
The Morning News
A recent Arkansas Supreme Court decision is forcing Tontitown, and possibly other Arkansas cities, to rewrite contracts with vendors, according to Tontitown Mayor Joe Edgmon.
"We're putting new language in all our city contracts that says if a contractor is doing business with the city, they're open to the state Freedom of Information Act," Edgmon said.
The court decision, coupled with an incident last year, combined to force Tontitown's hand.
In December, a Bentonville engineering firm refused an FOIA request from a Tontitown resident, Edgmon said. The city attorney entered into the ensuing fray and Edgmon discovered the city is responsible for ensuring its contractors comply with the Freedom of Information Act - especially after a November ruling by the Supreme Court of Arkansas.
Basically, the Supreme Court ruled that a private entity cannot be sued to provide information under the Freedom of Information Act. The FOIA request must first go to the governmental entity paying the private contractor.
If the governmental entity cannot produce the documents because the private contractor has the information, the FOIA requester must sue the public entity, who in turn must sue the private entity if the contractor refuses the request.
David Schoen, legal representative for the Northwest Arkansas division of the Arkansas Municipal League, said Wednesday that reworking contracts might not be a bad idea.
"It might not be a bad idea to have some version of that language in a contract," Schoen said. "I think it's a real problem. You might not want to write it so broadly as saying the contractor must comply with the entire FOIA."
The Supreme Court case complicated things for cities, Schoen said. At one point, it was pretty clear - if you had public documents, you were subject to the FOIA, Schoen pointed out.
"The ruling puts cities in a bad spot," Schoen said. "If somebody FOIs the city and they don't have the documents, they ask their contractor and the contractors says no, what's the city's recourse? Do they get sued and then sue the contractor?"
Jeff Hawkins, executive director of the Northwest Arkansas Regional Planning Commission, said if cities put requirement into their contracts regarding the FOIA, there may be apprehension from the private sector before signing a contract with that type of language.
"The information needs to be public because the public paid for it," Hawkins said. "But the question comes down to who provides what. Maybe the contractor isn't obligated, but the public entity is."
AT A GLANCE
Ruling
The Arkansas Supreme Court ruling, dated Nov. 1, 2007, involved Nabholz Construction and a Freedom of Information lawsuit filed by Contractors for Public Protection Association. The association sought information about the cost of construction of a student housing project at the University of Arkansas.
Source: Staff Report
Reader Comments (No comments posted.)
The following comments are provided by readers and are the sole responsibility of their authors. The Morning News does not review comments before their publication, nor do we guarantee their accuracy. By publishing a comment here you agree to abide by our comment policy. If you see a comment that violates our policy, please notify the web editor.
Not already registered?
