State's Freedom of Information Law Back Under Microscope

State's Freedom of Information Law Back Under Microscope
In this file photo, Arkansas Gov. Sarah Huckabee Sanders delivers remarks at the Wynne High School graduation ceremony on May 20, 2023 (Teresa Lee via the Arkansas Governor's Office)

Draft legislation to limit the scope of Arkansas’ open meetings and records law, the 1967 Freedom of Information Act, could be up for debate in a special session of the Arkansas General Assembly that Gov. Sarah Huckabee Sanders is expected to call soon.

Many particulars of the legislative draft, which has been widely circulated and drawn scorn from FOIA defenders, journalists and lawyers, could be part of a bill supported by Rep. David Ray, R-Maumelle. Ray sponsored legislation to alter the FOIA just months ago in the regular session of the legislature, but it was defeated after Arkansans from across the political spectrum spoke against it for hours in a legislative hearing.

The public records and meetings act is considered among the strongest in the country, and Ray and other public officials believe that it has been “weaponized” to put a strain on agencies and officials who are required to respond to public requests for information.

Draft of Arkansas FOIA revision by Scott Carroll on Scribd

The draft would exempt “deliberative processes” of state officials and agencies from the law’s oversight, and would allow the Arkansas State Police latitude to withhold information security arrangements for state officials, including the governor. Little Rock lawyer and blogger Matt Campbell has sued to gain access to Sanders’ travel records after being rebuffed by the state police.

The draft would also make some revisions retroactive to January 2022, and would place a higher burden on a lawyer or plaintiff seeking to recover legal fees and expenses after suing to gain information under the FOIA.

In a brief exchange with Arkansas Business, Campbell gave a quick response and promised a more considered reaction later. “But the short answer is this is a ridiculous effort to lie about ‘security’ and use that lie to retroactively justify the [Arkansas State Police’s] intentionally violating the law,” he said. “It’s gross.”

The draft would exempt records “that reflect the planning or provision of security services provided to the Governor, the Lieutenant Governor, the Attorney General” and other leaders, including Supreme Court Justices.

It would also exclude “executive branch state agency inter-agency memoranda or letters” unavailable except through discovery in litigation, and also make records “revealing the deliberative process of state agencies, boards and commissions” off limits for FOIA requests.

The protected information would include “communications and documents reflecting advisory opinions,” as well as recommendations and deliberations “that comprise part of the process by which governmental decisions and policies are formulated.”

Attorney General Tim Griffin convened a task forceearlier this year to change the law for the 21st century. 

In a statement, the attorney general said he believed “the governor’s proposed changes are reasonable, and I support them; they properly address security, encourage government innovation, and reverse the 2021 change by special interests to the attorney’s fees provision.”

Griffin’s statement said his office provides counsel to the governor and legislature on almost every piece of legislation, and that it had done so in this case.

“In any event, my FOIA advisory group continues to work, and I will not propose any legislative changes until late 2024,” Griffin said.

In a July letter to the editor of Arkansas Business, Griffin wrote that the group he assembled for the task force “represents different political perspectives and experiences when it comes to the Freedom of Information Act. Some align with me on many policy issues; some do not. Either way, I intentionally chose this group of people because I respect their views on the FOIA, their knowledge of the FOIA and their commitment to engaging in civil discourse. Further, I intentionally eschewed difficult personalities, opting instead for individuals who are collaborative and drama-free.”

Griffin also noted in a statement that digital records have greatly complicated the task of complying with records requests in the modern age. During the spring legislative session, Ray said that some requests demand tens of thousands of documents.

In reaction to Campbell’s lawsuit seeking the governor’s travel records, a State Police spokeswoman told The Associated Press that the information “would violate ASP’s statutory obligation to ensure the safety and security of the Governor and the First Family.”

Campbell said it’s ridiculous to claim that information about trips already taken could jeopardize the governor or anyone else.

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