Arkansas Legislators Seek More Limits on Public Records

by Andrew DeMillo, The Associated Press  on Monday, Mar. 11, 2019 6:38 am   3 min read

Bart Hester

LITTLE ROCK — Two years after the Arkansas Legislature scaled back the state's decades-old law protecting public access to government records, lawmakers are considering making even more information secret.

Proposals to expand state secrecy surrounding its executions and making the identity of some lottery winners confidential were endorsed by legislative panels last week. Other measures also are under consideration to shield information about law enforcement and investigations.

Open government advocates say they're trying to avoid a repeat of the 2017 session, when the Legislature enacted a series of bills that critics called an unprecedented assault on the state's 1967 Freedom of Information Act. Lawmakers in 2017 enacted measures that keep a host of information closed to the public, including details on university police and state Capitol security.

"It's death by a thousand cuts. When you keep chipping away, eventually those chips add up," said Ashley Wimberley, executive director of the Arkansas Press Association. "That's what we're seeing. It's just exemptions where we feel like they're not necessary exemptions."

The Senate is expected to vote this week on a bill to expand the 2015 law that keeps secret the source of Arkansas' lethal injection drugs. Arkansas has no executions scheduled, and its supply of drugs has expired. Prison officials have said they aren't seeking any more drugs until secrecy is re-imposed after court rulings that the state can't withhold drug makers' identities.

"Our goal is allow the Department of Correction to implement the laws the Legislature passes that the people of Arkansas overwhelmingly support," said Republican Sen. Bart Hester, the bill's sponsor.

Critics say the proposal, which would prohibit the state from releasing information that could directly or indirectly identify the drugs' suppliers and manufacturers, would give officials nearly unchecked power to withhold details about executions. The measure also makes recklessly releasing the drug information a felony.

"If a state wanted to break the law and breach contracts with impunity and hide its misconduct from the public, this is the type of bad-government law it would pass," said Robert Dunham, executive director of the Death Penalty Information Center, in an email.

Another proposal pending before the House would allow winners of lottery jackpots of $500,000 or more to keep their identities a secret. The lawmaker behind the measure said the move is needed to protect lottery winners.

Opponents of the bill say the measure would prevent the public from knowing whether there was any misconduct in the lottery program.

"If you hide information about lottery winners, you don't know whether the winner might be connected to someone in the lottery, you don't know whether someone in the lottery has arranged for someone outside the lottery to win," Sonny Albarado, an Arkansas Democrat-Gazette editor and member of the Arkansas Freedom of Information Coalition, told a legislative panel last week.

Other proposed exemptions working their way through the Legislature are measures to create a Maternal Mortality Review Committee and a Maternal and Perinatal Outcomes Quality Review Committee. The committees' records and proceedings would be exempt from the FOI under those two bills. Meanwhile, a proposal aimed at expanding the state's FOI law by requiring certain private groups such as university foundations to release their records failed before a Senate panel last week.

Unlike 2017, many of the FOI bills are going before a task force formed to review any proposed changes to the state's open-records law. The panel was formed two years ago by the Legislature in response to the flood of exemptions proposed.

Lawmakers aren't required to take proposed FOI changes to the task force. Ellen Kreth, who chairs the panel, said it's been successful in explaining to lawmakers the importance of the FOI and ways to scale back exemptions that would be too broad. Republican Rep. Michelle Gray, who had proposed a measure she said was intended to protect the identities of confidential informants, has said she's reworking the measure after members of the task force said it would keep many details of police investigations secret. The lottery bill, which initially would have kept all winners' identities secret, was amended after sponsors met with the panel.

"I think we're effective if they will listen to us and let us collaborate with them," said Kreth, the owner of the Madison County Record.

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