Depoyster v. Cole , 298 Ark. 203 ( 1989 )

Jack Holt, Jr., Chief Justice.

This appeal is from the trial court’s determination that certain voting methods employed by the Executive Committee of the Arkansas Activities Association (“AAA”) did not violate the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 — 25-19-107 (Supp. 1987). Also at issue is the court’s refusal to grant appellant Bobby Depoyster a new trial. We reverse and remand.

The AAA is an organization of approximately 500 public and private secondary schools in this state and is responsible for the administration of the rules and regulations governing interscholastic athletic competitions among member schools. Appellee Lamar Cole is the executive director of the AAA; appellee Leon Wigginton is the president. The executive committee of the AAA is the association’s governing body at all times when the overall governing body composed of the member schools is not in session. The executive committee is made up of sixteen principals and superintendents from eight districts around the state.

On January 20,1988, the executive committee met to select the sites for 22 regional and state basketball tournaments for the B, A, AA, and other classifications from bids which had been submitted by those schools interested in hosting a tournament. The tournaments were to begin on February 29, 1988.

Notice of the January 20 meeting was given to member schools and to the press. Principals, superintendents, and members of the public were present at the meeting. Appellant Bobby Depoyster, superintendent of the Newark School District, an AAA member, did not attend.

At the meeting, members of the executive committee discussed and voted for the various tournament locations. In those cases where only two bids had been received for a particular site, the vote was by a show of hands. In cases where more than two bids had been received, the vote was by unsigned written ballot. As to those votes, each member was asked to record his choices on a slip of paper — the sites to be listed in preferential order. The votes were then somehow tallied on a blackboard in view of those in attendance at the meeting. The slips of paper were discarded.

Thirteen sites were selected by show of hands; nine sites required written ballots due to the number of bids received. At the time of the meeting, no objection was made by anyone present as to the site selections or the manner in which the sites were voted upon.

Following the January 20 meeting, appellant Depoyster contacted the AAA on several occasions objecting that the voting method violated the FOIA in that utilization of unsigned written ballots amounted to the use of secret ballots contrary to the spirit and intent of the Act. He also claimed destruction of the ballots violated the Act. Upon filing an FOIA request, Depoyster was furnished with the January 20 vote results.

Subsequently, Depoyster brought suit seeking: (1) a declaratory judgment that the actions of the executive committee had violated the FOIA; (2) an injunction to prevent the AAA from taking similar actions in the future; and (3) costs and attorney’s fees. In response, the AAA maintained that its general procedure on other matters was to use written mail-out ballots which were signed and retained. Since the January 20 meeting was a public meeting, it was deemed sufficient to vote by a show of hands — with the exception that for those sites reflecting multiple bids written ballots were considered a more objective method of determining tournament sites. No thought had been given to signing the ballots or retaining them.

The trial court determined that there had been no violation of the FOIA. Depoyster moved for a new trial, and the AAA responded by affidavit that on March 24, 1988, the executive committee voted unanimously that all written ballots would in the future be signed and would be retained for a period of one year. In denying Depoyster’s motion for a new trial, the court found that the balloting method employed on January 20 was not intended to and had not prevented public inquiry or examination of the results of the committee’s actions.

The FOIA was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved. Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). The issue before us, simply put, is whether the trial court correctly concluded that the executive committee of the AAA did not violate the Arkansas Freedom of Information Act when it used unsigned written ballots which were disposed of in a manner making their review impossible.

It was conceded at trial, and on appeal, that the AAA is subject to the provisions of the FOIA as an organization in this state supported “wholly or in part by public funds or expending public funds.” See Ark. Code Ann. § 25-19-103(2) (1987). See e.g., North Central Assn. of Colleges and Schools v. Troutt Bros., Inc., 261 Ark. 378, 548 S.W.2d 825 (1977). A review of the provisions of the FOIA makes clear that neither the use of unsigned written slips as ballots nor the failure of the AAA to retain voting records can be condoned and that the actions of the executive committee clearly violated the overall intent of the Act, if not specific sections. Ark. Code Ann. § 25-19-102 (1987) provides:

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials. [Emphasis ours.]

Looking about us, we readily see that the decisions of this court, as well as those of the legislature, city council, and other governmental agencies are all made public to the extent of each individual’s vote. There can be no doubt that the use of unsigned written slips as ballots which are not retained as part of an organization’s records does little to assist the public in being advised as to the performance of the organization’s members or the decisions reached by those individuals. Obviously, it makes it impossible, rather than possible, for concerned citizens or their representatives to learn and report fully the activities of the officials of such organizations. Section 25-19-102, supra.

To bring about the intent and purpose of the FOIA, section 25-19-106(a) provides that, as.to those organizations subject to its provisions, all meetings, formal or informal, special or regular, shall be public meetings except as otherwise specifically provided by law. While the January 20 meeting was no doubt open to the public, the balloting method employed was such that there was no way to determine which member of the executive committee voted for any particular site. It would be sheer speculation on our part to suggest or assume that the defect could have been remedied in that those in attendance at the meeting were in a position to inquire as to each member’s vote. We have no idea whether such inquiry would have been permitted or, if permitted, whether any responses would have been forthcoming. In short, the voting should have been handled in such a way that the public was, or could have been, advised of the performance of the individual members of the AAA’s executive committee.

Moreover, section 25-19-103(1) of the FOIA requires that all writings or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by any agency supporteo by public funds, “shall be public records”. The recorded votes of individual members of the executive committee of the AAA obviously constitute a record of the performance or lack of performance of official functions carried out by the AAA, and there was testimony that it was the general practice of the AAA to retain mail-out ballots used in voting on matters coming before the AAA. The vote slips at issue, being records generally or otherwise kept by the AAA, therefore constituted public records which should have been retained.

Finally, those records must be open to inspection and copying by any citizen of this state, except as otherwise specifically provided in the FOIA. Section 25-19-105(a). See e.g., Arkansas Highway & Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). As the ballot slips were not retained it would have been impossible for those not in attendance to have determined a committee member’s vote even if the ballots had been signed. Section 25-19-105(a) envisions that public records will be retained and made available for all citizens to examine.

While we find nothing in the record to suggest it was the intent of the executive committee to operate in a clandestine manner by making use of “secret” ballots or that the ballots were destroyed in order to prevent their review, this does not alter our conclusion that the balloting method employed at the January 20 meeting prevented the public from determining the performance of the AAA’s executive committee and thus violated the FOIA. Accordingly, the judgment of the trial court is reversed and remanded with directions to enter a declaratory judgment that the appellee executive committee’s use of unsigned written ballots which were not retained as part of the AAA’s records violated the FOIA. In light of evidence of record that the executive committee has voted that all future ballots would be signed and retained, we find it unnecessary at this juncture to address Depoyster’s claim for injunctive relief as to future conduct on the part of the executive committee.

Depoyster claims that this case is proper for the invalidation remedy suggested in Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). We disagree. Furthermore, our disposition of the issues on appeal makes it unnecessary for us to address the trial court’s refusal to grant a new trial.

Depoyster also maintains that he is entitled to an award of attorney’s fees and costs. Ark. Code Ann. § 25-19-107(d) (Supp. 1987) provides that in any action to enforce the rights granted under the FOIA, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney 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 ours.)

Notwithstanding that we are reversing the trial court’s judgment, we find that the circumstances surrounding the January 20 vote would make an award of attorney’s fees and costs unjust. In a well-reasoned article, one authority discusses the FOIA provision for litigation expenses and states in part:

[T]he court “shall assess” attorney’s fees and other costs against a defendant in an FOIA case if the plaintiff has “substantially prevailed,” unless the court finds that the defendant’s position was “substantially justified” or that other circumstances would make such an award unjust. The court need not, therefore, make a fee award in every FOIA case; indeed, the purpose of the fee-shifting provision is to assess fees and costs where public officials have acted arbitrarily or in bad faith in withholding records.

[Emphasis ours.]

Watkins, Recent Developments Under the Arkansas Freedom of Information Act, 1987 Ark. L. Notes 59, 64.

We do not imply by this opinion that an award of litigation expenses under the FOIA will always be defeated in the absence of arbitrary or bad faith conduct on the part of the defendant. However, we do find that test decisive under the circumstances of this case.

Public notice of the January 20 meeting was given to member schools and to the press, and the voting was conducted in public. As to most of the site selections, the vote was by a show of hands. Those votes involving written ballots were tallied on a blackboard subject to inspection by anyone in attendance at the meeting. Upon request, the AAA furnished appellant Depoyster with whatever records it had as to the vote totals. Only a few months after the meeting, the AAA took measures to guarantee that in the future all written ballots would be signed and retained. In sum, the circumstances do not suggest either arbitrary or bad faith conduct.

While we recognize the salutary purposes underlying the FOIA and its sanctions, the facts before us simply do not warrant an award of fees and costs.

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissent in part.