Freedom of Information isn’t free

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There are Freedom of Information Act laws that allow citizens to request information regarding all types of government matters, and the law requires FOIAs to be answered in three business days. This year the number of FOIAs in Eureka Springs has increased dramatically, with 56 FOIAs received from January through the end of July.

Mayor Butch Berry said it is taking up so much of Mayoral Assistant Kim Stryker’s time that he really needs to hire another person, at least on a part-time basis, just to oversee FOIA requests because of the amount of time it takes to fulfill those requests.

The 56 FOIAs received through July compare to 48 for all of 2017, 65 for 2016 and 16 for July through December 2015. The city has estimated the cost of providing FOIAs year-to-date at $18,240.

The lion’s share of the FOIA requests in the past two years come from Joyce and Eric Knowles, who have been critical of the city’s handling of Americans With Disabilities Act requirements to make buildings handicapped accessible, and of an increase in water/sewer rates. The Knowles had 28 FOIAs in 2017 and 13 so far this year.

Berry says responding to all the FOIAs is expensive and time consuming.

“It is not just one employee working on it all the time either,” Berry said. “Sometimes all the departments get involved in it at one time or another. It is almost a full-time position or it could be. It takes time from employees doing their regular job. It’s a difficult position. Myself and everybody in our city government recognize the importance of a FOIA and why that information needs to be out and distributed to people because it is the right of the people to know if they have questions. We want to be transparent in government, but we also don’t have a lot of employees.”

Joyce Knowles said the city’s complaint about the cost of FOIAs is yet another example of the city failing to budget properly, and citizens have a right to the information.

“They claim informing the citizens is a burden?” she asked. “I filed my first FOIA because the mayor made a claim in the newspaper about making the decision to spend $457,000 on water meters based on the McClelland Engineering report. An FOIA returned, ‘There are no reports…’ Thereafter, we submitted FOIA requests because of stonewalling and because there are federal penalties for lying on a FOIA that don’t exist for lying to the press.

“He told the truth on the FOIA and I suppose that was because there are federal penalties for lying on a FOIA. This $18,240 is outrageous. We would like to be paid for the number of days they put off doing a 15-minute FOIA. If it cost them $18,240 to provide information the public has a right to request, then what would it have cost them to put this information on the website?”

But the mayor says the large amount of information requested is not appropriate for being placed on the city’s website (See sidebar on p. 2.

The Knowles put in a FOIA request asking how the city came up with the estimate for the cost of complying with FOIAs. The request showed that the labor cost was based on $15 per hour for the number of working hours the request was in the city’s possession before it was provided to the person requesting it. But Joyce Knowles said sometimes all the request requires is making a copy of something, so even if it is returned in one day, it doesn’t take eight hours to complete the request.

“Creative accounting!” she said.

The Knowles said when city council was considering moving meetings from the courthouse to the Auditorium, the Aud director told them, “It can cost as much as $8000 to heat The Aud for one event.” An FOIA request returned the response, “No such report containing the information requested is on record at the CAPC office.”

“They made it up,” she said.

Joyce Knowles said while working to pass Ord. 2265 to pay off bond indebtedness early, Eric submitted a FOIA for an independent audit of the water department done by an outside firm.

“The amortization schedule attached to the ordinance listed the principal amount for repayment much higher than it actually is by a whopping $1,815,000,” she said. “Yes, Eric caught a $1,815,000 error but the primary concern is that the mayor is complaining that citizens are exercising their civil rights; that they can’t do their job because we keep them busy doing their job.”

Berry said while there was an error in the way the schedule was calculated, the city would have ended up catching it anyhow.

“It wasn’t an error such we were going to die or go bankrupt,” Berry said. “Every one of our audits has come through clean from the state.”

The Knowles said they believe they have made citizens more aware of how this council operates.

“This group has a penchant for spending citizen money based on opinions and prejudices rather than documentation, accounting, expert advice, considered estimates, etc.,” the Knowles wrote in an email. “They proved themselves unresponsive to citizen input. City government can only be made stronger by making changes at the polls in November.” Joyce and Eric are both running for city council in the November election.

Pat Costner, director of Save the Ozarks, has put in 25 FOIAs to the city this year.

“The fact that the city has been receiving a lot of FOIAs reflects at least a perception of lack of openness on behalf of the city, its commissions and departments,” Costner said. “Many of my FOIAs have been for information reasonably expected to be posted on city’s website or for example, on the website of the Parks and Recreation Commission.

“So, I would suggest that any resources put into this issue would be directed toward helping the city and the departments and commission to get information posted on websites and to use their websites effectively. If the city hires someone to be a defacto FOIA officer, that won’t relieve the burden on the commissions and departments that have to produce responses.”

Most of Costner’s FOIAs had to do with the downhill mountain bike project and other issues at Lake Leatherwood.

“For example, I recently did a FOIA to the Parks and Recreation commission asking for the fecal coliform monitoring date for the sand beach at the lake,” Costner said. “The commission receives those on a monthly basis. It is entirely reasonable for the commission to post those publicly because this is a public health issue. There are probably multiple sources of E. coli at the swim beach, and the geese are no doubt the major component. But the wastewater treatment system out there is also in the watershed for the lake which means there can well be some input from the wastewater treatment system.”

Costner is also concerned about the secrecy around the contract with the Walton Family Foundation for the downhill mountain biking trails project.

“I believe Director Huss and the commission have offered comments to suggest that they deliberately and knowingly proceeded on that project in a way that prevented any public insight or comment,” Costner said.

Berry said the city is not trying to hide anything.

“I also have told all the staff, if someone comes in and asks questions, answer them,” he said. “Let’s give them the information they need. They don’t have to FOIA us. I want to be as transparent as possible. I don’t want to be adversarial. In a small town, we need to all work together towards the good.”

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