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For the first time, a new state-appointed brain trust will weigh in on proposed changes to Arkansas' Freedom of Information Act at the same time the General Assembly meets and votes on the legislation.

The Arkansas Freedom of Information Task Force is in charge of making recommendations on bills that would affect the state public records and open meetings law.

The group will advise whether legislators should approve the bills, revise them or kill them.

Federal and state freedom of information laws, often called "sunshine" laws, grant the public access to government records and require that public business be conducted openly. Arkansas' law was adopted in 1967.

The last time the Arkansas Legislature met in regular session, in 2017, lawmakers introduced at least a dozen bills that experts argued would weaken -- in some cases, gut -- the state's Freedom of Information Act.

At least 10 bills became law, though two that stirred the most opposition failed to pass.

"This is the people's law," Ellen Kreth, task force chairman and publisher of the Madison County Record newspaper, said of Arkansas' Freedom of Information Act.

The 2017 legislative session saw "a number of bills coming through that seemed very scattered. One person attacking the FOIA here, another there," she said.

The task force was created in part because legislators and supporters of government transparency saw a need for a public body to review proposed changes to the public records law.

"People need access to information about what the government does that affects them," Kreth said. "I applaud the Legislature for recognizing that. There were too many bills that would damage the FOIA."

The nine-member task force plans to meet as often as possible during the 92nd General Assembly, Kreth said. The legislative session starts Jan. 14.

One proposed exemption to the public records law already appears to be headed for a fight.

The Arkansas Municipal League plans to revive and revise a failed 2017 proposal, that session's Senate Bill 373 sponsored by Sen. Bart Hester, R-Cave Springs. The bill proposed keeping from the public eye government attorneys' communications and work products in "pending or threatened litigation."

Opponents said that broad exemption would have allowed government agencies to hide thousands of records that ought to be public.

The new proposal will be narrower, the Municipal League promises.

"We are longstanding proponents of the FOIA," said executive director Mark Hayes. Because private attorneys are allowed to keep confidential their working documents during a lawsuit, government-paid attorneys should have the same right, he said.

Private lawyers ask for, and receive, government attorneys' working papers, including legal strategies, under Arkansas' Freedom of Information Act, he said.

"Nobody's asking to hide anything. It's just a question of fair play."

Hayes said the municipal league's proposed exception to the Freedom of Information Act would apply only to pending lawsuits and would expire when litigation ends.

Robert Steinbuch, a UALR law professor and co-author of The Arkansas Freedom of Information Act reference book, views the proposal differently.

"They're trying to revive the rotting corpse of SB373 from last session," Steinbuch said, "and their actions will be seen as a transparent attempt to further advantage City Hall against Joe Citizen."

Government lawyers already have advantages in lawsuits against private entities, he said. The government side is armed with virtually bottomless tax revenue to pay for litigation and attorneys' salaries, while private clients and their lawyers usually work with limited assets.

It's a job of government agencies "to turn over documents," Steinbuch said. "If they're willing to fund the litigation on the other side with taxpayer dollars, an unlimited budget for attorneys for the other side, then we can start -- start -- talking about leveling the playing field."

"The saying is: 'You can't fight City Hall.' Not: 'You can't fight a private plaintiff.' It's because City Hall is inundated with advantages," he said.

Steinbuch is a member of the Freedom of Information Task Force, whose members were appointed by various elected officials and groups -- including the governor, state House and Senate leaders, the Arkansas Press Association, the Arkansas chapter of the Society of Professional Journalists, and city, county and university representatives.

Without the Arkansas Freedom of Information Act, government officials could conduct state and local business virtually in secret, experts say.

The law requires public officials to provide, to any member of the public who asks, almost all government records including -- but not limited to -- checks, receipts and budgets, court and traffic records and government officials' office emails, texts, salaries and expense reports.

Several dozen exemptions exist, shielding portions of personnel records, juvenile court actions, medical records and other information.

The intent of Arkansas' law is to make it possible for the public "to report fully the activities of their public officials," the statute says.

"It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy," the text of Arkansas Code Annotated 25-19-101-109 states.

Kreth says the task force will "look at every FOIA bill" and meet as often as possible to offer recommendations during the legislative session.

Lawmakers "don't have to take our recommendations, but legislators have been very accommodating so far," she said.

Kreth and Steinbuch support another idea from the Arkansas Municipal League -- listing all exceptions to the Freedom of Information Act in one place in state law.

The Freedom of Information law now contains 23 exceptions, but municipal league researchers have found another 47 or so spread throughout other Arkansas laws, Hayes said.

"That's the best count we have. They're hard to find.

"At the very least out of this legislative session, we hope for a law saying, 'Let's put every exception in one place,'" Hayes said. "That's a win-win" for the public, the media and record keepers, he said.

The 10 amendments to the Freedom of Information Act approved by legislators in 2017 shielded a range of records, including security information about the state Capitol Police, public schools and universities, and the Governor's Mansion.

Another bill that failed to pass in the previous session, House Bill 1622 sponsored by Rep. Bob Johnson, D-Jacksonville, would have extended the time government agencies have to answer some records requests, from three days to 15 days. Several groups have suggested that proposal will come up again in 2019.

An executive with the Tennessee Coalition for Open Government praised Arkansas lawmakers for creating the new Freedom of Information Task Force.

"Anything that brings extra vetting, extra discussion to changes in the FOIA law, that's a good thing. That should be the goal everywhere," said Deborah Fisher of Nashville, executive director of the Tennessee nonprofit.

Tennessee has had a Legislature-created Advisory Committee on Open Government since 2008, she said. It offers opinions on proposed legislation when legislators ask.

But too many freedom of information-related bills slip quickly through the Legislature, and lawmakers hear only from those in favor, she said. Fisher's group and others are pushing now for more committee hearings and public discussion about Tennessee Public Records Act proposals.

"That would give the public a better chance to make a case against a new exemption, or why an existing exemption should be rolled back," she said.

A Section on 12/26/2018

Print Headline: Task force to advise Arkansas legislators on public records law proposals

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Comments

  • UoABarefootPhdFICYMCA
    December 28, 2018 at 5:10 p.m.

    I was understanding that anyone could submit a FOIA request. ANYONE.
    Of course... This is Arkansas... I've heard PLENTY of stories.

  • MARILYNMATTHEWS
    January 6, 2019 at 10:35 a.m.

    After all the corruption that has been exposed this year from our state leaders one would think this would not be an issue. The public needs and deserves full transparency. FOIA must be protected.

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