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Public-records task force shut out; sponsor declines panel’s view on execution-drug measure in Arkansas

by Ginny Monk | March 9, 2019 at 4:30 a.m.
FILE — The state Capitol is shown in this undated file photo.

The sponsor of a bill that would keep secret documents regarding where the state gets its execution drugs said Friday that he is going forward with the measure without the endorsement of the Freedom of Information Act Task Force.

Sen. Bart Hester, R-Cave Springs, did not attend Friday's meeting of the task force and declined an offer to attend via conference call, calling it in a later interview "a waste of my time."

Hester said that after the task force sent a representative to the Senate Judiciary meeting during which Senate Bill 464 was discussed, he gathered that the committee is opposed to the death penalty. He referred to that when asked by an Arkansas Democrat-Gazette reporter to comment on the task force's concerns regarding the release of documents.

"Anything that they have to say on it I don't think has value," Hester said.

The task force is a legislatively established group of nine members who represent government, academia and the media. Members make recommendations to legislators regarding changes to the state's public-records and open-meetings law.

Hester's bill, Senate Bill 464, would prevent the release of any identifying information about the "manufacturers, suppliers and others involved in the provision of lethal injection drugs." It also prohibits any government officials from disclosing the same information.

[RELATED: Complete Democrat-Gazette coverage of the Arkansas Legislature]

Alec Gaines, a Little Rock attorney who represents the newspaper, said that many manufacturers have contracts with suppliers that should prevent them from providing the drugs to state departments that are in charge of executions.

"These are lifesaving drugs," Gaines told task force members. "They're not meant for executions."

Gaines, who represented a plaintiff who sought the release of package labels and inserts for the drugs in 2017, said the legislation would allow the state to obtain the drugs without the permission of manufacturers. Gaines is not a part of the task force and spoke as a member of the public.

He added that, beyond concerns about the release of the documents, the bill could violate the First Amendment rights of government employees.

"I just think it's wrong not to allow the public to know," he said.

Task force members unanimously voted not to recommend the bill's passage. It has already passed in the Senate Judiciary Committee and is set to go to a vote on the Senate floor.

Another related bill discussed Friday may have to wait two years before it can be presented to the Legislature again.

Senate Bill 231, sponsored by Sen. Kim Hammer, R-Benton, would explicitly apply the public-records law to private foundations and other groups that perform "a public or governmental function on behalf of a governmental agency or public entity" or provide "direct support" to a government agency or public entity.

The bill also would have kept hidden the identities of donors to any private entities that fit the description contained in the legislation.

But the bill failed to get out of the Senate State Agencies and Governmental Affairs Committee this week.

Previous reporting has shown that some foundations, such as the Razorback Foundation, that would be affected by SB231 work closely with and sometime perform some of the functions of the universities they support. But these foundations typically refuse to release documents, saying the Freedom of Information Act doesn't apply to them.

"This is simply explicitly bypassing transparency law," task force member Robert Steinbuch said of the practice. Steinbuch is a law professor at the University of Arkansas at Little Rock and co-author of the sixth edition of The Arkansas Freedom of Information Act reference book.

Steinbuch also helped Hammer with the language of the bill.

Hammer presented to the task force a revised version of the bill, narrowing the language to define "public records" as those maintained by a private foundation with the primary purpose of providing direct financial support to a public university or college or college employees."

"It is what it is," he said. "We're calling it what it is."

David Bailey, the managing editor of the Arkansas Democrat-Gazette, spoke against the revised proposal because it still allows the redaction of donor names.

"I really think that if we press this right now under Edmark, we would have a case," Bailey said. "The bill would kill that chance."

"Edmark" was a reference to the 1990 case City of Fayetteville v. Edmark, in which the state Supreme Court ruled that legal memos prepared by outside counsel to the city must be released to the public.

After the opposition, Hammer said he planned to put the bill in interim study, which means it would not be considered during this session.

"This is the first attempt to do this either in a long time or in the 50 years history of the [Freedom of Information Act]," Hammer said. "For this reason I thought we should take the next two years to slow-cook it and study it."

Information for this article was contributed by Eric Besson of the Arkansas-Democrat Gazette and by Aziza Musa for the Arkansas Democrat-Gazette.

Metro on 03/09/2019

Print Headline: Public-records task force shut out; sponsor declines panel’s view on execution-drug measure


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