Arkansas’ open-records law requires Gov. Mike Beebe to keep secret every application he gets requesting appointment to state boards and commissions, his lawyers have argued in response to a Freedom of Information Act lawsuit by Republicans who seek to force the twoterm Democrat to release about two years’ worth of applications.
“Sound public policy” requires that the applications be shielded from public disclosure, according to the Monday filing.
The lawsuit filed last month by Megan Tollett, the executive director of the Republican Party of Arkansas, should be dismissed because she’s not entitled to the materials she’s seeking, Joe Cordi, senior assistant attorney general, contends on Beebe’s behalf in a response that cites an exemption to the Freedom of Information Act found in Arkansas Code 25-19-105.
Cordi said the provision requires the governor, legislators, state appeals court judges and the attorney general to keep secret all “unpublished memoranda, working papers and correspondence.” He asserts that the materials sought by the Republicans meet the definition for all three classifications.
“Governor Beebe is entitled to judgment as a matter of law,” Cordi wrote in the Monday filing. “Some of the requested documents do not fall within the [law’s] definition of a public record, and all of them are exempt from disclosure.”
But Cordi said even if Pulaski County Circuit Judge Mary McGowan rules that the documents could be made public, Tollett’s request should still be denied because it’s “incredibly broad.”
Cordi said Tollett’s request could require Beebe, who has the authority to appoint members of more than 300 state panels, to disclose something as minor as a Christmas card he received from an applicant - even if that card was sent six years after the person had applied for a position. Open-records laws require specific requests for them to be legitimate, he said.
None of the applications are disclosed publicly beyond Beebe’s staff, which assists the governor in vetting candidates, Cordi said, and the courts have found the exemptions that apply to the governor are extended to his employees.
Documents such as applications don’t have to be written by the governor’s office to be considered protected correspondence, Cordi said. He cited a 20-yearold Arkansas Supreme Court ruling that determined documents from a consultant submitted to the attorney general’s office should be considered correspondence exempt from public disclosure.
The records are also shielded from public scrutiny under the memoranda exemption because they are in writing, Cordi said, and they fall under the working-papers exemption because the governor uses them to evaluate and select applicants.
“The applications and other records collected in association with that [appointment] process are working papers because the governor and his staff in fact work with and rely on them in assisting the governor to perform one of the core functions of his office,” Cordi’s filing states. “[Tollett’s] complaint and brief fail to explain how papers that are worked with and used by the governor and his staff cannot be working papers.”
State courts and academics have found the exemptions serve important legal and policy objectives because they encourage the deliberative process by allowing the free exchange of thought within the government’s three branches, according to the state filing. That shield also protects those branches from interfering with each other, the filing states.
Shielding the governor’s appointment applications also encourages candor from applicants who are asked to discuss their qualifications for the posts they are seeking and to provide information that could embarrass them if disclosed, the filing states. The exemption results in more-qualified candidates, which is sufficient grounds for the judge to declare the applications shouldn’t be made public, according to the filing.
Tollett sued last month after Beebe’s lawyers twice denied her request. No hearing has been scheduled.
She said she sought the records after reading news accounts about how Beebe’s director of board appointments, 41-year-old Mica Strother, is also a fundraising consultant for Mike Ross, the former Democratic congressman who is campaigning to replace Beebe in the next election, and Democratic U.S. Sen. Mark Pryor, who is running for re-election.
Arkansas, Pages 10 on 01/08/2014