Transparency group unveils proposal to enshrine Arkansas FOIA in state Constitution

From the Arkansas Advocate:

A government transparency group on Wednesday released its awaited proposal to enshrine the Arkansas Freedom of Information Act into the state Constitution.

Formed in the wake of last month’s special session to add exemptions to Arkansas’ public records law, Arkansas Citizens for Transparency (ACT) hopes to protect the law by requiring a vote of the people to enact any future changes to lessen government openness.

The proposed amendment would also:

• Codify a definition of a public meeting, which has long been unclear and frustrating for transparency advocates and government officials alike.
• Stiffen penalties for violating the FOIA.
• Protect aggrieved citizens’ right to appeal FOIA decisions to circuit court and, if successful, collect attorneys’ fees.
• Substitute a new exemption for records related to security services provided to the governor and other state officials. 

“It has become clear in recent years that it is critical to enshrine government transparency in Arkansas, regarding public records and public meetings, in our state constitution,” ACT leaders wrote in a Wednesday open letter. “Arkansas has been a national leader in government transparency since 1967, when Gov. Winthrop Rockefeller led the way for the enactment of the Arkansas Freedom of Information Act.

“We, the undersigned, believe strongly that Arkansas should maintain, and even strengthen, our position of leadership on this vital issue. We further believe that having an open and transparent government is a right, and rights belong in the constitution. For that reason, this group has come together — in spite of our varied, and in some cases fundamentally opposed, political perspectives — to propose the Arkansas Government Transparency Amendment.”

The measure still has a long road ahead before reaching the November 2024 ballot.

It must be submitted to Arkansas Attorney General Tim Griffin, who must approve the ballot title and popular name. Then, canvassers must gather more than 90,700 signatures from registered voters before July 5 to qualify for the ballot.

For now, the group plans to accept public feedback on the proposal for about a month, said Nate Bell, the former independent state lawmaker who has been one of the leaders of the effort.

Bell hopes to submit ballot language to the AG’s office sometime in November following a series of public meetings around the state. Members of the public can also submit feedback through the group’s website or Facebook page.

“We’ll incorporate any changes we feel are valid,” he said.

Then, Arkansas Citizens for Transparency hopes to gather signatures with strictly volunteers, but Bell said the group will make preparations to hire paid canvassers just in case.

Public meetings

The biggest change the amendment would make to Arkansas’ sunshine law is to provide a definition for what exactly is subject to the open meetings provision of the FOIA.

For years, public bodies and citizens have operated under a complex web of case law and attorney general’s opinions to determine what should be open to the public, often leading to disagreements.

For instance, should it be considered a public meeting when two justices of the peace talk about county business outside of a regular quorum court meeting? What if the conversation is strictly personal?

Under the proposal, a public meeting would be: “A meeting at which two or more voting or nonvoting members of a governing body communicate for the purpose of exercising the responsibilities, authority, power, or duties delegated to the governing body on any matter on which official action will foreseeably be taken by the governing body.”

Public meetings would also include “a series of two or more formal or informal, one-on-one communications between an agent or employee of a voting or nonvoting member of the governing body and more than one member of the governing to discuss any matter on which official action will foreseeably be taken by the governing body.” These could include text or email conversations.

Security records

The amendment effort spawned out of Gov. Sarah Huckabee Sanders’ effort to make sweeping changes to the Freedom of Information Act during a special session in September.

Sanders and legislative leaders’ primary stated goal was to exempt records related to the security provided to Sanders and her family, but the initial legislation went much further, including proposed deliberative process and attorney-client privilege exemptions that experts said would have left gaping holes in the public records law.

Those provisions were removed from the bill after loud pushback from citizens and officials spanning the political spectrum.

Instead, the Legislature passed a different measure focused on security records. While some groups got behind the stripped-down bill, others said it still was overbroad.

Sanders also sparked concern with comments shortly after the session when asked if she would continue to push for some of the FOIA exemptions that were removed from special session consideration.

“We’re not going to stop continuing to fight for more government efficiency and effectiveness, and I think this is just the beginning of that process,” she said at the time.

ACT’s amendment would repeal the exemption created during the special session, replacing it with a security exemption the group believes is more balanced with the public’s right to know.

It would exempt records reflecting the planning or provision of security services to the governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, commissioner of state Lands, members of the General Assembly, justices of the Supreme Court or judges of the Court of Appeals.

It would also apply to the minor children of those state officials.

The exemption would be for records less than three months old. Records older than that would be presumed to be public, but custodians of the records could appeal to circuit court to determine if the privacy of the record is essential to the ongoing security of the official being protected.

Asked about the proposal and whether Sanders had concerns about the substitute exemption, Communications Director Alexa Henning said:

“As the Governor has said, she is proud that legislation passed with bipartisan support to ensure the sources and methods used by law enforcement to protect constitutional officers and her family will be protected. Support that also includes the Arkansas Press Association and the Arkansas Broadcasters Association.”

Enforcement

The amendment explicitly states that the state can be made a defendant in FOIA litigation.

It also requires judges to fine public officials who knowingly withhold public records or conduct public meetings in private a minimum of $1,000.

Those officials should be held personally liable and the fines cannot be paid with public funds, the proposed amendment states.

The amendment also requires judges to award attorneys’ fees to plaintiffs in FOIA lawsuits unless the court finds the position of the custodian was “substantially justified.”

Future changes

The amendment allows the General Assembly to make changes to the Freedom of Information Act “in a manner that makes government or public process, meeting, or record more transparent.”

But legislation that makes government less transparent must be referred to the people at the next general election. Such a referral would require a two-thirds majority vote in the House and the Senate subject to approval by the governor.

In emergencies, the General Assembly may enact such measures that take immediate effect through a nine-tenths majority vote subject to approval by the governor.