dissenting. To begin with, I commend the majority for its decision to overturn the erroneous and unfortunate language set out in Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989). I strongly disagree, however, with the majority’s ultimate decision to deny attorney’s fees to David Harris. In this case, Harris has spent approximately $10,000 in order to expose the City of Fort Smith’s FOIA violation. Yet, despite his resounding victory on the merits, Harris will not be reimbursed his attorney’s fees and litigations costs for his efforts.
The FOIA statutory provision regarding attorneys’ fees is set out at Ark. Code Ann. § 25-19-107 and states the following:
In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust.
(Emphasis added.) The attorneys’ fees provision, like all provisions of the FOIA, is to be liberally interpreted in order to accomplish the purpose of promoting free access to public information. Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994). Given these standards, it is clear that the City of Fort Smith was not “substantially justified” in its decision to violate the FOIA.
The City has stipulated to the following four facts: (1) Bill Harding, the city administrator, held one-on-one meetings with individual members of the City Board in order to determine “whether the Board would approve the purchase of the land at a subsequent meeting if Mr. Harding made a successful bid at the public auction”; (2) Harding’s contact with the Board members involved city business; (3) the public was not notified of these meetings; and finally, (4) the purpose of the meetings was to avoid publicly disclosing the amount of the City’s bids. See Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004). These stipulations are all supported by a memorandum sent by Fort Smith Deputy City Administrator Ray Gosack to his superior, Harding. The Gosack memorandum gives insight into the true purpose behind the City’s stealthy negotiations for the Fort Biscuit property. The memo provides in pertinent part the following:
Acquiring this property through an auction creates some unusual challenges for the city. Normally, we seek formal board approval, including an offer price, before acquiring property. If we obtain formal board approval for acquisition of the Fort Biscuit property, the city won’t be able to competitively bid for the property since our maximum offer would be public information ... If the board is interested, we’ll need to have some appraisal work performed to determine how much the city should offer for the property. We would then informally review a maximum offer amount with the board. We’d want to have the board’s concurrence on a maximum offer amount before participating in the auction.
(Emphasis added.) The Gossack memo — combined with the stipulations from the City itself— shows that the City intended to shield its activity from the public in order to acquire the property at a good price. The majority court believes the City’s actions were for a “laudable purpose” and grounds for substantial justification under the statute. I could not disagree more. Here, the City’s actions were intentionally designed to illegally circumvent the public disclosure requirements.
By vindicating the City’s actions, the majority is not liberally interpreting the FOIA; instead, it is undermining the purpose behind the Act. The attorney’s fee provision was enacted to encourage a person to file suit when a violation of the FOIA occurs. It is unreasonable to think that citizens will continue to bring FOIA claims when their right to recover attorney’s fees and costs are taken away.
Although the public has greatly benefitted by Harris’s actions, Harris has incurred a substantial monetary loss as a result of this court’s decision. Given these circumstances, Harris has won nothing more than a Pyrrhic victory. Hereafter, only the wealthy or the news media can afford to bring lawsuits against public officials who choose, like the City of Fort Smith, to refuse to follow the dictates of the FOIA. For these reasons, I respectfully dissent.
Imber, J., joins this dissent.