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Freedom of Information ‘Emergency’ Draws Skepticism

9 min read

More: The Arkansas Freedom of Information Task Force voted unanimously Monday morning to strongly oppose the FOIA overhaul. See what they said here.

Gov. Sarah Huckabee Sanders’ proposal to overhaul the state’s Freedom of Information Act as an emergency agenda item in this week’s special session of the Arkansas Legislature drew sharp criticism over the weekend from press groups, lawyers and even a couple of Republican county committees.

The primary objective of the session is to cut Arkansas property taxes.

Still, Sanders announced her support for the FOIA overhaul in her announcement of the special session on Friday, saying the sunshine law puts her and other elected officials at risk. She said she has received death threats, and several defenders of the current FOIA said they respect the need for keeping some security details confidential.

The overhaul she favors would do far more than exempt the governor’s travel records from necessary disclosure under the law — Little Rock lawyer and blogger Matt Campbell has sued to get records from the Arkansas State Police about the governor’s past travel by plane.

The proposed changes would also shield from public disclosure records of pre-decisional policymaking actions by state agencies, and make records reflecting attorneys’ advice to public bodies off-limits from disclosure.

“I think it is very broad and I am curious why a large chunk of the proposed exemptions would be retroactive to January 1, 2022,” said journalism professor Rob Moritz, chairman of a task force authorized by the Legislature to offer advice on ways to improve the law. “Also, I wonder why there is an emergency; that is the word the bill uses. The FOIA has been law in Arkansas for more than 55 years. Why does this need to be done now, during a special session?”

Another portion of the proposed legislation could discourage citizens from filing lawsuits against agencies that fail to turn over records by making it harder for them to recover attorney’s fees from the government.

In a news conference Friday, Sanders said the FOIA law “has been largely unchanged” since its inception in 1967, under Republican Gov. Winthrop Rockefeller. She said the 1960s were “a time before email, cellphones, text messages and sadly before some of the more aggressive polarization that we see across our country today.”

But Robert Steinbuch, professor of law at the University of Arkansas at Little Rock William H. Bowen School of Law and a noted FOIA expert, said a carve-out of records on security is already part of the law. He also took issue with the idea that the law hasn’t been updated for modern records.

Robert Steinbuch

“Her father [Mike Huckabee, who served as governor from 1996-2007] put together a commission to update the FOIA to reflect electronic records,” Steinbuch said in a telephone interview. “They updated it significantly under her father’s leadership.”

Steinbuch also agreed with Moritz — who is married to Arkansas Business Contributing Editor Gwen Moritz — that no emergency exists to reasonably expedite changing a law so important to government accountability.

“A special session is essentially an emergency session,” Steinbuch said. “There’s nothing emergent about three of the four parts of this bill. And the first part is likely a smokescreen for the other three sections.”

Several groups oppose the legislation, including the Arkansas Public Policy Council. “The outcome of this proposal is not hard to imagine,” said Bill Kopsky, the APPC executive director. “It will lead to greater fraud and abuse of office. It will lead to more secret deals developed in back rooms and sprung on the public at the last minute when it’s too late for the [public to have meaningful input.”

Pulaski County Republicans wrote on the group’s Facebook page that the FOIA is for all citizens, regardless of party, and quoted Campbell, who sought the governor’s travel records.

“The legislature is being asked to pass a retroactive law that would not only gut transparency in this state, but would also excuse the Arkansas State Police for intentionally violating the law for months. Worse, you’re being asked to do this not just based on an outright lie.

“This is not about ‘security’ in any sense of the word. ASP has already provided the dates and times of Sanders’ flights, the location of each departure and takeoff, and the emails from Sanders’ staff, reserving the plane for each use. If this were about security, ASP would not have released any of that.

“Instead, the only things they’ve refused to release are the names of people who traveled with the Governor and the expenditures incurred by the ASP when the Governor decided that she wasn’t happy with the usual two troopers on an international trip and, instead, demanded five troopers go with her.”

Saline County Republicans also announced their opposition to the bill, House Bill 1003, and its sister bill in the Senate, SB7.

“SB7 and HB1003 (the same bills) are sponsored by Saline county legislators: Senator Kim Hammer, Senator Matt McKee, Representative Mary Bentley, and Representative Keith Brooks,” the Saline GOP Facebook page said. “Our party platform states, ‘We firmly support transparency and openness at every level of government. Those elected, appointed, and employed in government work for the taxpayers and must provide public information when requested, in line with Arkansas’s Freedom of Information Act.’ Why should we settle for less transparency in the reddest state in the nation? Call your legislators today and let them know what you think about these bills.”

Arkansas Press Association Executive Director Ashley Wimberley told Arkansas Business on Sunday that efforts to revise the public accountability law beyond security concerns should wait for a regular session of the legislature to let the public be heard.

“We as an association definitely don’t feel like many of the components of the bill constitute an emergency,” Wimberley said. “If they would separate the government security portion in a special session, then that’s understandable.” Beyond that, she said, the association and other members of a working group established by Attorney General Tim Griffin to amend the public records law should be allowed to make their recommendations.

The APA is participating in the group to recommend revisions for the 2025 general session, Wimberley said in a telephone interview. She said her group’s participation demonstrates its willingness to seek common ground, but that significant changes to Arkansans’ right to know shouldn’t be rushed into being in a brief special legislative session.

Griffin’s group’s first meeting was on Friday, Wimberley said. “Basically, we’re going to just regroup after the session and see what happens. We’ve set a date to meet in October.”

“Do we really want a blackout of information about how decisions are arrived upon in state government?”

Griffin’s office told Arkansas Business that it provides counsel to the governor and Legislature on almost all legislation, and that it supports Sanders’ proposal. “In any event,” Griffin said in a statement, “my FOIA advisory group continues to work, and I will not propose any legislative changes until late 2024.”

The press association, Arkansas Press Women and Professor Steinbuch urged lawmakers to heed their constituents. Dozens of regular Arkansans waited patiently for hours to testify against similar FOIA changes in this year’s regular legislative session. That legislation, House Bill 1726, supported by Sanders and sponsored by Rep. David Ray, R-Maumelle, and others, was voted down in committee after passionate testimony from opponents, who noted that practically all of those testifying for it were affiliated with government entities.

Wimberley said the timing of the proposed FOIA provision was unfortunate, because many defenders of FOIA laws discovered its jeopardy on Friday, and the legislative session is to start Monday. “I feel that there’s going to be a good group of citizens that are ready to testify, and legislators need to hear their point of view. It may be interesting, because it may end up being more because there’s been a special session and a different type of scenario.”

Rep. David Ray

More people supporting the current law may show up, Wimberley said. And Steinbuch urged legislators to recall what happened on the national level when a former Arkansas governor, Bill Clinton, pushed through a federal assault weapons ban when he was president.

“What happened was that 50 Democrats lost their seats,” Steinbuch said. “My argument to so-called conservative legislators is that if the governor’s thanks for voting for this is going to help them in their re-election or primary challenges, they need to look at what happened to those Democrats.

Gov. Sanders called it “ridiculous” to frame the bill as a radical change. “We are literally mirroring federal language,” she said, citing a 2021 U.S. Supreme Court ruling that upheld the deliberative process privilege in a case against the U.S. Fish & Wildlife Service filed by the Sierra Club.

Steinbuch, whose co-writings have been cited in a U.S. Supreme Court opinion by none other than Justice Clarence Thomas, noted that he’s well known as a conservative. “The problem is that there is nothing conservative about this bill.” In reference to the deliberative process privilege, “to my shock and horror I heard the governor’s office and David Ray point to Washington, D.C., California and New York as models for changing our law. I know of no conservative politician in Arkansas who has ever run on a platform of making Arkansas law more like D.C., New York or California.”

Steinbuch grew vehement about the attorney-client privilege provision, saying that Pennsylvania’s weak FOIA laws helped hide serial child molestations by Penn State assistant football coach Jerry Sandusky.

“What little FOIA they had didn’t cover Penn State,” Steinbuch said. “That’s why Sandusky was able to rape children repeatedly without oversight for years and years. Then when the federal government got involved and someone sued to get the records in the hands of the federal government, they imposed the attorney-client privilege to prevent turning over those very records. I call this provision the Child Molestation Protection Act.”

Ellen Kreth, publisher of the Madison County Record, testified against the FOIA overhaul last spring and said that it “dodged a bullet.” She praised ordinary Arkansans for turning the tide against HB1726, saying they demonstrated that the FOIA is for the people, not just for the press.

Kreth’s paper won the 2021 Taylor Family Award for Fairness from the Nieman Foundation for Journalism at Harvard after using Freedom of Information requests to piece together a series on attempts by the Huntsville School District to cover up sexual abuse allegations by junior high basketball players who were bullied, held down and subjected to “baptism rituals” involving body parts. The Record pursued the story after local parents approached it, desperate for the truth, Kreth said. The school district, Kreth said, had not only covered up the assaults, but also its own failure to report them as required by law.

Attempts to reach Rep. Ray for comment on this article failed, although he defended the FOIA legislation Sunday on KARK’s “Capitol View” public affairs program, eventually agreeing to disagree with moderator Roby Brock on what the ramifications of his bill might be.

Ray said he expected financial details about the governor’s travel to be open to the public, though that would ultimately be at the discretion of the Arkansas State Police. He made no argument that the other three elements of the FOIA overhaul amounted to an emergency.

“There’s the attorney’s fees portion, the deliberative process and attorney-client privilege,” Ray said. “Look, the reason [for these three portions to be included in the special session bill] is because generally all of these things deal with the same topic area. The governor is placing these issues on the call. That’s her responsibility as governor. It’s our responsibility as the legislature to consider these proposals, to debate them and to vote on them. So all of these things we have worked on in consultation with the governor and her office.”

When Brock interrupted to suggest that a brief special session would deny the public a meaningful chance for input, Ray said public debate had occurred in the last general session.

“Are you willing to take public input and make changes?” Brock asked.

Ray replied: “We’ve made a lot of changes to the bill, and a lot of the changes that we’ve made were based on public input from the last general session.” For example, he said he decided to keep the required FOIA request response time at three days because “it was clear to me that that’s important to a lot of folks.” He also said he’d relented on plans to charge fees on FOIA requests from the public.

“There’s a lot of public input that has gone into how we arrived at what’s in the bill,” Ray said.

Moritz, chair of the Arkansas FOIA Task Force, said his attempts to get Ray to attend a meeting on the topic on Monday morning had drawn no response.

“Rep. Ray has not returned my text or email request to speak at the Task Force meeting at 9 a.m. Monday on Zoom,” Moritz said. “I tried calling him but could not leave a message because his mailbox was full. Sen. [Scott] Flippo, [R-Bull Shoals] the lead Senate sponsor, did respond and he will be at the meeting.”

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