concurring. I concur in the result. I do not agree that the issue before us is nearly as broad as stated in the majority opinion. I would not go beyond the issue actually presented. In order that the matter be viewed in the proper perspective, a more comprehensive statement of the case than is contained in the majority opinion is necessary.
Appellee filed a petition for writ of mandamus to require the Arkansas State Police Commission to conduct a public hearing on his appeal from the order dismissing him. The only reason petitioner assigned as a basis for this relief was that the commission was considering whether his dismissal was justified and not his employment, appointment, promotion, demotion, disciplining or resignation, covered by the exception to Ark. Stat. Ann. § 12-2805 (Repl. 1968). Appellants asserted that the hearing of appellee’s appeal did come within that exception, and that he was not entitled to a public hearing.
The writ set out the circuit court’s holdings in unusual detail. It commanded appellants to conduct a public hearing, with the qualification that after the hearing, the commission might go into executive session to discuss or consider its disposition, and thereafter reconvene in public session and make known its finding and decision. Appellants only assert that the direction to hold a public hearing is erroneous. No appeal was taken from that portion of the judgment permitting the executive session for deliberation, and no one asserts here that the circuit judge’s holding in this respect is erroneous.
The basic purpose of the Freedom of Information Act, is, of course, for the benefit of the general public. The exception provided by Ark. Stat. Ann. § 12-2805, however, is primarily for the protection of the employee or prospective employee. It has been suggested that the rationale of such a section is that government employees should not be put in a more public position than employees of a private organization when their personal attributes are being discussed, even though it might be desirable in some cases that public sessions to consider such matters be held. See Comment, Access to Governmental Information in California, 54 Calif. L. Rev. 1650, 1657 (1966). It would seem that the best interests of the accused might have been served by a hearing in executive session, if the result is ultimately favorable to him. But the matter cannot be viewed retrospectively.
It is to be noted that executive sessions are only permitted by the statute — not required. We have heretofore recognized the interest of a public officer in having charges against him considered in a public hearing in Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85, when we expressed the opinion that hearings on serious charges for removal of an officer serving a fixed term should be public if the accused desired. Although there might be bases of distinction between the cases of a public officer serving a fixed term and a public employee serving for an indeterminate period, no reason for making such a distinction appears here. Appellee has clearly, positively and repeatedly asked for a public hearing. In the absence of an overriding public interest calling for a private hearing (e.g., national security), he should have it. The only suggestion of such an interest in this matter is the argument in appellants’ brief that witnesses whose attendance cannot be compelled by the commission would be more reluctant to voluntarily appear and candidly assert facts detrimental to the accused in a public hearing than in a closed session. This argument is made academically, as there is nothing in the record to indicate that there are witnesses in this case who will not voluntarily appear or who are reluctant to testify. It is offered principally in rationalizing the basis for the exception. This contention does not seem to me to override appellee’s desire for a public hearing, particularly in view of the fact that, if he ultimately sought review of an order discharging him, the record of the hearing would then be made public when filed in the circuit court. Since this is the case, I agree with the result reached by the majority.
I do not agree, however, that the act does not permit the hearing of testimony in a case such as this to be had in executive session when the commission desires and the employee involved does not object. This approach gives a far too narrow construction to the word “considering.” To consider may mean more than to deliberate or adjudge. It may mean “to entertain” or “give heed”; “to fix the mind on with a view to careful examination”; “to examine.” Eastman Kodak Co. v. Richards, 123 Misc. 83, 204 N.Y.S. 246 (1924); Massachusetts Mut. Life Ins. Co. v. Colorado Loan & Trust Co., 20 Colo. 1, 36 P. 793 (1894); Rodolf v. Board of Commissioners of Tulsa County, 122 Okla. 120, 251 P. 740 (1926); United Bro. of Carpenters v. Industrial Commission, 363 S.W. 2d 82 (Mo. App. 1962); Black’s Law Dictionary, 4th Ed. See also, People v. Tru-Sport Pub. Co., Inc., 160 Misc. 628, 291 N.Y.S. 449 (1936). Even though the word “consider” might be given the very narrow connotation of “deliberate,” as implied by the majority opinion, this is not at all consistent with the obvious purpose of the exception and would leave the commission free to hold a public hearing of evidence on charges against an employee over his objection. I do not think that this was the legislative intent and insist that a reading of the whole act requires that we give the word consider an interpretation broad enough to include the hearing of evidence. Otherwise, the whole purpose of the exception can easily be defeated.