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Overhaul of Arkansas records law draws GOP opposition

by Dale Ellis | September 12, 2023 at 5:00 a.m.

Two county Republican committees in Central Arkansas have come out in opposition to a Republican-sponsored bill that would substantially shield records that are currently considered to be public records from public view.

Gov. Sarah Huckabee Sanders announced Friday during her call for a special legislative session plans to overhaul the Arkansas Freedom of Information Act, saying the state's sunshine law slows state government operations and exposes her and other constitutional officers to security risks.

House Bill 1003, sponsored by state Rep. David Ray, R-Maumelle, would expand exemptions for records from disclosure under the Arkansas Freedom of Information Act, including records related to the governor's security, policymaking process for state agencies, and records prepared by an attorney representing a state official, and it would make it harder for those who win lawsuits against local government agencies under the Freedom of Information Act to recover attorney's fees.

Ray is a member of the seven-member Freedom of Information Act review working group assembled by Attorney General Tim Griffin in June to make recommendations on changes to streamline the 56-year-old act.

An identical bill, Senate Bill 7, is sponsored by Sen. Scott Flippo, R-Bull Shoals.

The Republican Party committees in both Pulaski and Saline counties posted strongly worded statements on each of the committees' Facebook pages in the wake of Sanders' news conference unequivocally opposing the legislation.

"Our party platform states," said the Saline County Republican Committee's post, "'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?"

The Pulaski County Republican Committee, on its Facebook page, was even stronger in its condemnation of the proposed bill, saying that the Arkansas Freedom of Information Act "is for all citizens, regardless of party affiliation."

"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," said the post. "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," the post continued. "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 release[d] any of that."

Nate Bell, a former Republican state representative from Mena, who left the Republican Party in 2015 to become an independent, said he is concerned that attention is being intentionally directed toward Sanders' security concerns in order to keep attention off of the provisions that many critics have found most alarming: the exemption of a wide swath of now-open public records dealing with how policy is crafted and how decisions are made throughout state government.

"This hides almost all agency deliberations from public view," Bell said. "I think that's the bigger story here and the most insidious piece of this; the fact that the public will essentially not have a way to know what agencies are doing until it's already done is a significant problem."

Bell said during the 2023 regular legislative session, he and some like-minded friends had discussed attempting to launch a ballot issue to enshrine the Arkansas Freedom of Information Act in the state constitution through a ballot initiative if bills restricting access to public information succeeded in that session.

"Some of us who support transparency had discussed if they passed this maybe we need to do a constitutional amendment," Bell said. "We watched the process work, we felt like, they blocked the changes and we were like, well, maybe it's not necessary right now."

But, Bell said, with the issue being placed prominently on the agenda for the special session, "it's become pretty obvious they're not going to stop meddling.

"It seems the only way to make it clear that Arkansas is the sunshine state is to put something in the constitution along with clear language that the Legislature can't change it," he said. "It has to be a vote of the people."

Bell said regardless of the outcome he believes it will likely be necessary to go forward with a constitutional amendment proposal.

"Very clearly," he said, "if they pass this we will immediately activate and you're going to see an A-list of Arkansas leaders step up and move this forward."

Rob Moritz, chairman of the Freedom of Information Act Task Force formed in 2017 by legislation in the General Assembly and a journalism instructor at the University of Central Arkansas in Conway, said the two bills being considered are not just of concern to journalists and the news media.

The task force meets this morning at 9 a.m. via Zoom, in advance of House and Senate meetings of each chamber's committees on state agencies to discuss the legislation.

Touted by Sanders and by supporters in the House and Senate as needed to improve security and provide for transparency, Moritz said he doesn't see how the information restrictions the bills propose would accomplish that.

"It doesn't just address security by the governor, it addresses all sorts of working papers, communications between state agencies and department heads," he said. "How are all of these changes, how is all of this going to make things more transparent? From what I've seen, it looks like they're trying to make things more efficient in government by taking away transparency."

During a news conference last week, Sanders said overhauling the Freedom of Information Act was a choice she made based on her and her family's personal safety. She said she has received death threats since taking office and her advisers told her she needed to take steps to withhold documents related to her security detail.

Arkansas' Freedom of Information Act, signed into law in 1967 by Republican Gov. Winthrop Rockefeller, is generally considered to be one of the strongest and best models for open government by investigative reporters and others who research public records for various purposes, according to the Encyclopedia of Arkansas, with the intent to keep government business and government records at the state, county and local level open and accessible.

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