FOIA Task Force Rejects Plan to Overhaul ‘Sunshine Law'

FOIA Task Force Rejects Plan to Overhaul ‘Sunshine Law'

More: Even a couple of Republican county committees are against the proposed FOIA overhaul. See what they said here.

The Arkansas Freedom of Information Task Force voted unanimously Monday morning to strongly oppose an overhaul of the state’s open records law under debate in this week’s special legislative session, declaring it untimely and not in the best interest of Arkansans.

The task force, created by Act 932 of the Arkansas General Assembly in 2017, was formed to advise lawmakers and policymakers on proposals that would affect the state’s open records and meetings law, the 1967 state Freedom of Information Act.

The task force members voted to reject Senate Bill 7 and House Bill 103, identical measures that would limit public access to records about the governor’s security but also revoke the government’s responsibility to provide the public with a broad range of documents relating to policymaking and government bodies’ interactions with lawyers.

The panel heard testimony from several Arkansans vehemently opposed to weakening the public’s right to keep watch on government officials and agencies in their deliberations.

“On that deliberative process [provision of the bills]... I did some research,” said Jimmie Cavin, a Freedom of Information Act defender who was first to testify. He said the bill would shield from the public the workings of “state departments, divisions, services, offices, commissions, boards and councils.” He counted 345 of those.

“As for the part about legal fees, it is set up to discourage a citizen from filing a complaint, because now I’m not going to get the attorney fees to pay my attorneys,” Cavin continued. “But the government has taxpayer-funded lawyers to defend against the complaint. That’s taking our rights. As far as attorney-client privilege, I [as a taxpayer] am the client.”

Restricting access to those records would leave the process “ripe for fraud and corruption,” he said.

Kristin Netterstrom Higgins of Arkansas Press Women seconded Cavin’s concerns and said without access to records detailing government deliberative processes, “we are concerned for residents being able to be part of that deliberative process.”

Fort Smith lawyer Joey McCutchen noted that Gov. Sarah Huckabee Sanders compared the proposed new rules to the U.S. Freedom of Information Act, which includes a deliberative process exemption.

“It has been called by those who know the most abused exemption in the U.S. FOIA,” McCutchen said. “In 2013, federal agencies cited this provision over 81,000 times to justify non-disclosure of public records.” He said the proposed exemption here would mean that Arkansans “would never be able to see pre-decisional or deliberative discussions among bureaucrats, among state agencies, among state boards, among state commissions. And that is so concerning, because that is the reason we have a FOIA.”

Task Force member and Little Rock law professor Robert Steinbuch said he was generally fine with measures to truly advance security. But overall, he said, “this package is cobbled together, a wish list for bureaucrats, and a bad idea for the people of Arkansas. And it shouldn’t be brought during a special session with what now seems, you know, an undemocratic process to run [the bills] through whatever committee where they can get a majority.”

Opponents of the legislation were expected to testify against it in the House and Senate State Agencies and Governmental Affairs committees, but members of the task for said they expected the legislation to go to the floor, if it could, through the bodies' Judiciary committees.“I heard rumors, frankly, that they were going to try to run it through Judiciary because they didn’t have the votes in State Agencies,” Steinbuch said. “But I don’t know what is actually on the call at this point.”

Steinbuch called for one vote to oppose the legislation. After it was unanimously approved, he made another motion for the task force to declare that the bills were unsuitable for a special session and contrary to the best interests of Arkansans.

That motion, too, carried unanimously.