City of Fayetteville v. Edmark was a case before Arkansas Supreme Court in 1990 concerning the application of open records laws to contracted legal counsel.
This case established that public agencies could not hire outside contractors, namely outside legal counsel, to replace services retained by the city in order to circumvent the Arkansas Freedom of Information Act.
- The City of Fayetteville became involved in a complex legal battle when its agency, the Northwest Arkansas Resource Recovery Authority, was contracted to construct and manage an incinerator. The city issued the bonds without a vote and after the bonds had been sold, the public voiced opinions against the project and voted it down.
- The complex legal issues of recovering the bonds and canceling the contracts resulted in the city contracting additional legal counsel to aid in determining all the legal issues surrounding the dispute.
- The city hired its usual counsel and outside counsel from Washington D.C.. The two firms collaborated and developed a number of documents analyzing the legal circumstances and proposing various actions. The firms were paid over $400,000 for their services.
- Edmark filed an open records request for the documents produced by the two law firms.
- The city rejected the request. Edmark filed suit and the city asserted that the documents were exempt because the documents were not in the possession of the city but instead were the possessions of the law firms and thus not public documents. They further argued that the public interest in the documents were low and that the release of the documents would hamper the cities ability to conduct other litigaiton relating to the incinerator.
Ruling of the court
The trial court ruled in favor of Edmark and ordered the documents disclosed.
The Supreme Court affirmed the decision of the trial court. First, the court cited Laman v. McCord, the first case interpreting the Arkansas Freedom of Information Act, which established that the act did not include an exemption for attorney-client privilege. The Court went on to reject the city's claim that the documents were not public records. It asserted the fact that the documents in question directly related to public functions and that the documents could be used to evaluate the performance of public officials. The court also asserted that the fact that the documents were produced by outside counsel and not the city attorney, did not remove them from the scope of the public records law. The court stated, "The specially retained attorneys were the functional equivalent of the regular city attorney. The City cannot avoid the FOIA requirements by substituting a private attorney for the city attorney." For the same reason, the court rejected to cities claim that it was not in possession of the records. Finally the court rejected the city's claim that the documents are exempt because they would give an "unfair competitive advantage" by determining that Edmark is not considered to be in competition with the city for bidding and the exemption does not apply.