Arkansas Open Records Advocates Fear Major Change in FOI Law

by Kelly P. Kissel, The Associated Press  on Monday, Mar. 13, 2017 7:37 am  

(Mauren Kennedy)

LITTLE ROCK — In the 50 years since Republican Gov. Winthrop Rockefeller's signature enacted one of the nation's strongest laws ensuring government openness, legislators have carved out fewer than two dozen exemptions to the Arkansas Freedom of Information Act.

This year alone, state legislators have filed bills to create another dozen exemptions and make it harder to find other records. In what's being called an unprecedented assault on the public's access to government records, legislators have already authorized a secret police force at the state Capitol and could soon extend the same privacy to those who patrol Arkansas' state-run colleges and universities.

"I think there are some concerns about our changing times and security obviously being high on everyone's list," said Tom Larimer, the executive director of the Arkansas Press Association. "My concern is that there is also an undertow of anti-media bias in these votes."

While President Donald Trump has labeled journalists the "enemy of the people," a Democratic lawmaker said the effort to weaken Arkansas' FOI began much earlier. State government workers complained at the Capitol last year that it had become burdensome to comply with information requests.

"A lot of these bills were filed before a lot of the rhetoric about the press being the opposition party was even in play," said Rep. Clarke Tucker, a Democrat from Little Rock. "The complaint is that the FOI is just too burdensome for public employees in Arkansas. It is just coincidental that they were all filed at the same time, and all seem to hurt the strong FOI law that we have."

Open records advocates set aside time each year around James Madison's birthday, March 16, to mark Sunshine Week, honoring his advocacy for the Bill of Rights.

Arkansas already has exemptions for gubernatorial or legislative correspondence, water system safety plans and the names of undercover police officers. New proposals largely attempt to protect police or their operations, but others would let government institutions close off access to routine work. Among them:

  • A college could seal a record if it believed that someday, somehow, it might be sued over the subject matter.
  • Agencies could copy their lawyers in on correspondence and then claim an attorney-client privilege to keep the records under seal.
  • The government could declare a request "unduly burdensome" and remove the 72-hour deadline for compliance.

"It's an unprecedented assault on open government in Arkansas," said Larimer, who tracks the bills for his group and also heads the state's informal FOI Coalition of open-records advocates.

The bills that would allow the Capitol Police and college police forces to shield basic information about their officers were intended only to shield specific safety plans, but were written in a way that "records and other information" about the agencies would be off-limits.

It means the public would never know, for example, if a college or the Capitol police were hiring enough officers, hiring officers who look like the people they're hired to protect, or paying them an honest wage. It'd be impossible to know the number of officers who are white, black, male or female. If an agency had a $1 million budget for salaries, are two officers making $500,000 or are 20 officers making $50,000 each?

In his unsuccessful bid for governor in 2006, then-candidate Asa Hutchinson said he supported the FOI laws.

"I would pledge to veto any bills that would weaken the Freedom of Information laws in this state. It is something that must be maintained with constant vigilance," he said then. Now, as governor, he has said he would not favor exemptions that are "overly broad."



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