A bill to halt public access to government records related to "pending or threatened" litigation -- which opponents say would undermine the intent of Arkansas' Freedom of Information Act -- is expected to go before the state House of Representatives for a vote on Monday, says supporter Rep. Bob Ballinger, R-Berryville.
An amendment to* Senate Bill 373 was approved Friday by the House S̶t̶a̶t̶e̶ ̶A̶g̶e̶n̶c̶i̶e̶s̶ ̶a̶n̶d̶ ̶G̶o̶v̶e̶r̶n̶m̶e̶n̶t̶a̶l̶ ̶A̶f̶f̶a̶i̶r̶s̶ ̶C̶o̶m̶m̶i̶t̶t̶e̶e̶ after more than two weeks of sometimes tense debate.
Attorneys with the University of Arkansas, Fayetteville and Arkansas State University, along with other state agencies, say they need the legislation to compete fairly in court cases against opposing lawyers.
Under current law, their opponents demand notes and strategy documents before cases go to court, gaining an unfair advantage, according to UA System lawyer David Curran and ASU System lawyer Brad Phelps.
But critics like Dan Greenberg, president of the Advance Arkansas Institute, who has testified against the bill, say the legislation's "over-broad" language would hide vast numbers of records that aren't related to legal strategy in court cases.
If the bill were limited to specific litigation strategy records, such as certain drafts and notes, "it wouldn't be a problem," Greenberg said Friday.
But because SB373 also exempts attorney-client communication and attorney work product, it would hide all records related to any pending case in which a state agency is involved -- and records related to future or threatened litigation.
"This bill is the equivalent of taking a forklift into a public agency and moving a file cabinet full of documents from the 'open-to-the-public room' into the 'secrecy room,'" said Greenberg, a former legislator.
Ballinger amended and rewrote the bill this week, expanding it from five lines to more than 20 in an effort to narrow the focus and win support, he said. But he acknowledged the changes "did not satisfy everyone."
Greenberg, the Arkansas Press Association, and Arkansas Freedom of Information Act textbook writer Robert Steinbuch, a UALR law professor, say the bill still is far too broad for the problem it seeks to address.
Ballinger's response by text Friday: "They are wrong."
If the amended bill passes the House, it would need another round of approval from the state Senate.
More than 10 bills have sought exemptions to Arkansas' 50-year-old public records law during this legislative session. At least five have become law or are waiting for Gov. Asa Hutchinson's signature, according to the Legislature's online records.
Two new bills, just emerging in committees, have garnered praise from open-records advocates:
• House Bill 1946, which would create a panel of attorneys to conduct independent reviews when state agencies deny a citizen's public-records request. The only current option is filing a lawsuit and paying legal costs.
Sponsored by Rep. Clarke Tucker, D-Little Rock, HB1946 "affords requesters the opportunity to seek some redress without the costly, cumbersome and foreign process of going to court," said Steinbuch.
• House Bill 2132, which would create a task force to review, evaluate and approve proposed amendments to the state's Freedom of Information Act of 1967. It's sponsored by Rep. Laurie Rushing, R-Hot Springs.
Steinbuch likes that, too.
"Anything that will get experts and the population together to think about and talk about the status of the [Freedom of Information Act] before the Legislature is in session" is a good idea, he said.
Metro on 03/18/2017
*CORRECTION: The Arkansas House of Representatives on Friday amended Senate Bill 373, which exempts government documents related to pending or threatened litigation. A previous version of this article incorrectly stated which legislative body approved the amendments.