2 bills bad news for open-records law, experts say

Two legislative bills scheduled for an Arkansas House committee hearing today would gut the state law that gives taxpayers access to public records, according to a law professor and the director of the Arkansas Press Association.

"These are the two biggest assaults on the Freedom of Information Act" this legislative session, said law professor Robert Steinbuch, an author of the state's new, revised textbook on the Freedom of Information Act. "These bills would disembowel this law."

"On their face, these bills might seem reasonable," added Steinbuch, a University of Arkansas at Little Rock law professor. "But they're really about protecting bureaucrats at the expense of taxpayers."

Both bills -- Senate Bill 373 and House Bill 1622 -- are scheduled before the House Committee on State Agencies and Governmental Affairs at 10 a.m. today.

SB373 would exempt any record from public access if a public agency claims it constitutes "attorney-client communication or attorney work product."

The bill's sponsor, Sen. Bart Hester said the idea was originally proposed by colleges and universities involved in court cases where opposing lawyers demanded records detailing the universities' legal strategies.

The current Freedom of Information law puts "institutions of higher education at an extreme disadvantage for their day in court," Hester said.

Hester submitted an earlier bill that applied to litigation or anticipated litigation. But many other agencies, including utilities, asked for the same exemption, he said. So Hester submitted SB373, five lines of new law, that applies to all public records.

Tom Larimer, executive director of the Arkansas Press Association, said his group opposed the bill because it would permit any "public agency to potentially run any record by their attorney" and claim the record is exempt from public view because of "attorney-client privilege."

"Its potential for unintended consequences is enormous," Larimer said.

The two bills are not the only ones that seek to add exemptions to the records law this session, and Larimer said that in 13 years with the press association, he's never seen so many bills aimed at weakening the law.

Many "are so broadly written that they are so open to interpretation. It's a bad way to make law," he said.

Hester, a Cave Springs Republican, said no one had raised objections that SB373 would conceal large numbers of records from the public until an Arkansas Democrat-Gazette reporter called late Tuesday.

"I don't think that is accurate," Hester said. "I will look into it. There are few things that keep public officials accountable like a FOIA does. My goal is to be able to let our governmental agencies have a fair day in court."

The University of Arkansas System supports SB373, said spokesman Nate Hinkel.

"Bottom line is that we support this bill because we believe this legislation would allow for fair representation of public entities by their attorneys."

Hinkel said "46 other states provide exemptions related to litigation records, attorney-client communication or attorney work product."

Steinbuch said the state's Freedom of Information Act puts Arkansas "on the leading edge of pro-access for citizens."

"Government attorneys work for the people. This bill prevents, among other things, the people from seeing what's going on regarding perhaps the most important issues of government, when they're in litigation.

"Moreover, government bureaucrats will use this to hide vast amounts of information by simply running everything through their attorneys."

SB373 has already been approved by the state Senate.

HB1622 is another bill that would cut a large hole in the state's Freedom of Information Act, said Steinbuch, an author of The Arkansas Freedom of Information Act textbook's sixth revised edition, released Feb. 15.

The current law requires agencies to fulfill public records requests immediately but gives them three days if the records are in use or storage. Many agencies take advantage of the three-day grace period.

The proposed bill would allow agencies to extend that time if officials decide the request is large, complicated or "unduly burdensome."

The bill contains no deadline for when an agency must supply the information. The legislation instead allows a state agency to notify the person requesting documents that the response will be delayed, along with the cause of the delay and the expected date of compliance.

"This will allow government bureaucrats to string along responses so as to effectively never respond," Steinbuch said.

The current law allows an agency to ask the requester for more time or go to court to seek more time, he said.

HB1622 "would require the taxpayer, who is not a lawyer and often cannot afford to go to court, to do so -- effectively killing the public records request," Steinbuch said.

The bill's sponsor, Democratic Rep. Bob Johnson of Jacksonville, could not be reached for comment Tuesday.

Pulaski County, among others, supports HB1622, county attorney Adam Fogleman said Tuesday.

"The bill recognizes [that] since the FOIA was initially adopted, the nature of records has changed. It speaks to a balance -- the need to protect taxpayer funds with the need to assure that taxpayer-funded services remain transparent," he said.

When a citizen requests one week of police dispatch audio, for example, it takes 3,000 hours of work to go through all 22 channels, Fogleman said. It's impossible to get the information within three days.

Asked if Pulaski County or other supporters have collected data showing how staff hours or costs have risen because of freedom-of-information requests over the years, he said they have not.

Gov. Asa Hutchinson couldn't comment Tuesday because he has not yet reviewed either of the bills, a spokesman said.

A Section on 03/01/2017