City attorney tells council new Arkansas FOIA language bars polling by officials
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Summary
City Attorney Amy Beckman Fields explained recent legislative clarifications to the Arkansas Freedom of Information Act, saying council members may not engage in polls about foreseeable council matters and must avoid soliciting or participating in communications that seek to determine how they will vote.
City Attorney Amy Beckman Fields told the North Little Rock City Council that recent changes and clarifications to the Arkansas Freedom of Information Act (Act 505 of 2005) limit certain communications between council members and others about matters likely to come before the council.
Fields said the updated guidance identifies two areas of concern: communications with city staff and officials and communications among council members. "You may not communicate in any manner ... when the person that you're communicating with is, as discussing a matter with you that is likely to come before the city council and likely something that you're gonna take action on to determine whether you're for or against it or to determine how you're gonna vote," Fields said.
The explanation matters because the legislature and state opinions have differed in recent years on what kinds of exchanges constitute prohibited polling or deliberation. Fields said council members may still seek background or non-decisional information from staff: "You can communicate with staff and other officials, to get background or non decisional information." But she added that if a city employee or agent attempts to determine whether a member is for or against an impending item, council members must not engage in that polling.
Fields also explained that communications among two or more council members are restricted if they constitute deliberation about an item that is reasonably foreseeable to come before the council. "You may not communicate with one or more other members if it is ... going to be something that constitutes deliberation," she said.
Council members asked for clarification about what counts as background information; Fields responded that questions such as "why did you do a piece of legislation 10 years ago" are background and permitted, while explicit efforts to learn how colleagues intend to vote are not. She cautioned that if a council member learns another member's position through voluntary comment, the first member may not relay that position to others as part of a coordinated polling effort.
The council voted to accept the memorandum on the file. The memorandum was titled as coming from the city attorney and referenced the Arkansas Freedom of Information Act (Act 505 of 2005). It was introduced as part of the agenda item read by title and accepted by council voice vote.
