Bundle Of Bills Highlight How Tricky, Fragile Are Freedom Of Information Laws
Arkansas’s 91st General Assembly has hosted serious discussions on healthier eating (only) on food stamps and on Sharia Law, guns on college campuses and sanctuaries on those same campuses for undocumented immigrants. Less attention until late had been given to the roughly two dozen bills that seek to shape up — or water-down, depending on your bent — the state’s half-century old Freedom of Information Act.
“Arkansas is known to have one of the best Freedom of Information Acts in the country, and it’s because it’s simple, it’s straightforward, and it’s extremely pro-citizen,” says William H. Bowen School of Law professor Robert Steinbuch, who’s co-authored the sixth edition The Arkansas Freedom of Information Act.
“I have never seen an assault on the Freedom of Information in the Arkansas legislature as we’re seeing this year.”
Signed into law by revered Gov. Winthrop Rockefeller, the state’s Freedom of Information Act turns 50 this year. Most of the 30 bills filed this General Assembly intend to narrow the Act’s scope. Sen. Gary Stubblefield’s Senate Bill 12, for example, would withhold security records for schools including universities from FOI request.
“Well, you know, we don’t live in Winthrop Rockefeller days,” Stubblefield said last week.
The FOI Act is the mechanism by which lawyers, journalists and citizens can request most any written record, from e-mails exchanged on government accounts to education spending spreadsheets to reports on agencies’ failures. There are already many exemptions, notably personnel records of public employees, juvenile records and the voluntary adoption registry, and several state police databanks including the Crime Laboratory.
But in a half century only 23 exempting amendments have been attached to it. By comparison, Tennessee’s FOI legislation, identical to Arkansas’s and modeled on Florida’s pioneering legislation, has more than 400 amendments.
“Which basically renders their FOI useless,” says Tom Larimer, who directs the Arkansas Press Association. “I found that out firsthand publishing newspapers in Tennessee.”
“This is why Arkansas’s Freedom of Information is one of the best in the country, because it’s remained so un-amended.”
DOG DAYS FOR DEFENDERS
Larimer’s spent a lot of time trying to convince legislators that a strong FOI Act is in the taxpayers’ best interest.
For him, the unseasonably warm winter is a counterpoise to the cool reception he’s received at the Capitol this winter. Except for the association’s hired lobbyists — the Wills Law Firm, founded by former house speaker Robbie Wills — no one has stood with Larimer to defend public access of information.
Stubblefield’s bill, for instance, is expected to pass and be signed by the governor.
The two most egregious subversions, Larimer and Steinbuch say, are currently being considered in the House of Representatives. Senate Bill 373 by Sen. Bart Hester (R-Cave Springs) would apply attorney-client privilege exemptions to any information requested under the act. House Bill 1622 would lift the three-day deadline to comply with the act if a request is “unduly burdensome.”
It’s sponsored by Sen. Jane English (R-North Little Rock), and Rep. Bob Johnson (D-Jacksonville).
The governor said last week he favors Hester’s bill, originally co-sponsored by Rep. Andy Davis (R-Little Rock), who backed out. Rep. Bob Ballinger (R-Hindsville) is now helping shape it in the House.
“Whether it’s the University of Arkansas or higher education [institutions] or another [public] institution, when it’s in litigation,” it should be excused from open records requests “so that the opposing side can’t get the litigation strategy,” Gov. Asa Hutchinson said.
“And so, we want to see that narrowly defined, but it makes some sense.”
He has some reservations about English and Johnson’s. “That gives too much flexibility. That’s one that I don’t think takes us in the right direction.”
SHADE FOR THE SHADOWY TYPE?
The bill isn’t narrowly defined, not now. It’s one single sentence. Exempt: “A record that constitutes an attorney-client privileged communication or attorney work product.”
Steinbuch said Friday that such an FOI Act amendment would function to protect alleged sex offenders on staff at a college or university from outside scrutiny. How does he know? Just such a case took place at the University of Illinois Springfield. A head softball coach resigned following allegations of sexual impropriety, but the reports were buried. The local newspaper sued under Illinois Freedom of Information Act provisions. Resolution took two years and went all the way to an appeals court and still didn’t yield a full reporting of the incidents.
“It will be the exemption that swallows the rule,” Steinbuch said of SB373. “I appreciate what the governor is doing, but it was another Republican governor 50 years ago to the year, Rockefeller, who brought forth the Arkansas Freedom of Information Act, and it really is an attack on his legacy to support this kind of exemption.
“And I’ve heard no valid argument why in the last 50 years the State of Arkansas has not collapsed without this exemption in place already.”
The University of Arkansas System approached Hester about carrying this legislation, the senator said last week. The Arkansas Democrat-Gazette obtained e-mails last week through FOI and reported Sunday that the UA and Arkansas State University systems’ officials and lawyers have written to Ballinger with suggested language for the bill.
Steinbuch is himself an employee of the UA System..
“My loyalty is to the people of Arkansas and the taxpayers of Arkansas, of which I am one, and I am tired of paying for entrenched, deep-state bureaucrats to hide documents from the public through their attempted invocation of even existing exemptions no less ones that will swallow the rule.”
SALES TAXES AND RED LOBSTER
Several of the bills like Stubblefield’s exempt security information, including that gathered by the state police about the Governor’s Mansion, the Capitol police, any records (video) that depict the death of a law enforcement officer, data recorded by police dashboard or body cameras, even one that puts a waiting period on traffic accident reports.
Larimer and the press association oppose all of these. He was asked by one legislator in a committee hearing this session if he’d ever met FOI legislation he liked. About half of the bills filed hinder the public’s access to information, which the press association generally opposes. Likewise, nearly any expansion of records for public review, such as House Bill 1225, the association supports.
HB 1225 is an attempt to repeal the FOI exemption (sponsored by disgraced Springdale Republican Rep. Micah Neal in 2015) of state sales tax totals for hotels and restaurants. Such data were the basis of popular news reporting on a local area’s hottest restaurants. (In the capital city, this was facetiously called the “North Little Rock Red Lobster story” by some reporters because the chain restaurant was frequently at or near the top.)
The repeal, HB1225, sponsored by Rep. Steve Magie (D-Conway), did not make it out of committee.
THE TRUMP EFFECT
Larimer and Wills all said they suspect new President Donald Trump’s frequent criticism of the intent and veracity of journalists nationally helps explain state Republicans' own efforts locally at circumscribing the Freedom of Information Act. Clarke Tucker (D-Little Rock) told the Associated Press that much of this legislation, like Stubblefield’s, was filed in previous sessions and before Donald Trump was even a presidential candidate.
“The complaint is that the FOI is just too burdensome for public employees in Arkansas. It is just coincidental that they were all filed at the same time, and all seem to hurt the strong FOI law that we have.”
Hester and the governor eschewed the Trump connection.
“Those are completely separate,” the governor said last week. “This is not about the media at all. It’s not about the public that needs information. It’s about holes in the system that need to be plugged so that things that need to be protected are not disclosed. There’s historically been exemptions for personnel decisions, there’s exemptions for executive privilege that the governor has and communications here in this office. And so, there’s some things that make sense and some things that don’t.
“I don’t think you can say just because someone identifies a problem and that needs to have a change in the FOI law that we’re somehow reducing transparency because that’s not the objective and it should not be the goal.”
Yes, there’s been a surge in FOI exemption bills, Hester said, but he’s still a fan, mostly.
“I try to say that there’s no greater tool keeping bureaucrats and elected officials like myself held accountable like the Freedom of Information Act ... but I also understand that we live in a world where information is at your fingertips and immediate, so most of these Freedom of Information Act exemptions you see are about protections.”
Arkansans would support the exemptions, he said.
CORRECTION: An earlier version of this story incorrectly counted those who believe President Donald Trump's rhetoric has had an impact on the legislation filed amending the state's Freedom of Information Act.
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