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FOIA Bill Revised After Opposition and Chaos at Capitol

4 min read

Plans to overhaul the state’s Freedom of Information Act hit walls Monday at the State Capitol as constituents swayed lawmakers against provisions that would allow withholding a wide array of records now open to public requests.

A revised bill was introduced in the Senate overnight, and lawmakers will begin considering it today.

Gov. Sarah Huckabee Sanders, who made altering the FOIA an emergency agenda item in this week’s special legislative session, huddled with Senate Republicans at midday Monday. But no bill was presented at committee hearings as the day wore on, and opposition to bills presented Friday met opposition from across the political spectrum.

The two identical bills, House Bill 1003 and Senate Bill 7, would shield Huckabee’s travel and security information from public scrutiny, something she calls necessary to her safety and her family’s.

But opposition grew over other provisions of the bill, which would exempt records on government bodies’ deliberative processes and communications with lawyers.

Senate committees approved many of Huckabee’s other objectives for the session, including proposals to cut property tax rates and outlaw COVID vaccines for government workers.

But citizens waiting to have their say on the FOIA bills faced off with Senate President Bart Hester, R-Cave Springs, who told them in a confrontation widely played on YouTube that he’d had enough Senate votes to pass SB 7 until constituents started sharing their concerns with their representatives.

It seemed clear that the bills lacked enough votes to clear the Senate Committee on State Agencies and Governmental Affairs, and Hester told a crowd gathered at the Capitol after 7 p.m. that he couldn’t give them a time to be heard because the bill was being revised and he couldn’t schedule a hearing until he had a bill to present.

“I had more than 18 Republicans to pass this bill off our floor today,” Hester said. “I still do now, the original bill.”

But he said the revisions were “a product of people in this room continuing to influence this bill, and that should make you happy, right?”

After 9 p.m., Hester and Rep. David Ray, R-Maumelle, lead sponsor of the House bill, presented an amended FOIA bill that retains the original bills’ exemptions on the governor’s security records and a controversial provision to limit FOIA plaintiffs’ awards of attorney’s fees when government officials refuse to release public documents.

But the new legislation, Senate Bill 9, excludes fewer records than the original. It would still shield “records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department” and records prepared by attorneys for state officers, employees and commission members for use in lawsuits or anticipated lawsuits.

The special session was planned as a three-day affair, but House members voted against suspending rules on how much time is required for bills to be assessed and debated.

Speaker Matthew Shepherd, R-El Dorado, called the House into recess for rescheduling.

Sanders announced her support for the FOIA changes when she called the session on Friday. Little Rock lawyer and blogger Matt Campbell has sued to require the Arkansas State Police to release information about the governor’s plane travel, including who flies with her and the costs of taking her escort of state troopers.

Law professor Robert Steinbuch, a member of a task force created by the General Assembly in 2017 to advise the legislature on any changes to the 1967 “sunshine law,” voted unanimously with other task force members Monday to oppose the overhaul and declare it against the best interests of Arkansans. He called the package a cobbled-together “wish list for bureaucrats, and a bad idea for the people of Arkansas.”

Steinbuch said the new version pares down the deliberative-process exemption, and while it still has problems, is generally an improvement.

“But the terrible sections on exempting communications with attorneys and eliminating the recovery of attorney’s fees for those citizens who successfully sue the government are still in there,” Steinbuch told Arkansas Business Tuesday morning.

He said that the new bill “does nothing to protect against Sandusky-molestation horrors that remained hidden in Pennsylvania” because of exemptions in public records laws there, a reference to former Penn State football coach Jerry Sandusky, who is serving 60 years in prison for rape and sexual abuse of 45 children.

“Here’s how it works,” Steinbuch said. “A coach at an Arkansas state school molests children. The administration gets wind of it and immediately and correctly contacts counsel. Every record created thereafter — including that initial contact with counsel—is exempt.”

He said a spokeswoman for the governor had tweeted that the attorney-client exemption doesn’t apply to criminal behavior. “This is the problem when you don’t have adults in the room. The attorney-client exemption squarely applies to criminal behavior more than anything else, in fact.”

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