The Arkansas House of Representatives on Monday approved a bill that would amend the state's Freedom of Information Act to allow local officials, along with their attorney, to discuss some economic development prospects in private.
House Bill 1280, submitted by Rep. Delia Haak, R-Gentry, would potentially allow members of a city council or quorum court to skirt public disclosure of sensitive information, such as incentives for development, by considering economic development projects in an executive session.
By law, meetings of a local governing body are ordinarily open to the public but members can choose to enter an executive session, albeit under very limited circumstances. At that time, their discussions are closed to members of the public, including the media.
The bill would allow the governing boards of entities like cities and counties to enter executive session to consider certain projects that fall under the Local Job Creation, Job Expansion and Economic Development Act of 2017.
House members approved the measure in a 54-22 vote, with 13 members voting present. It now goes before the Senate for approval.
CHANGES PROPOSED
According to the legislation's text, officials could enter an executive session if public discussion would give an advantage to competitors or bidders, or if the discussion encompassed records related to a project that are maintained by a city, county or a jurisdiction's economic development service provider.
Additionally, under the bill, a governing body's attorney could be invited to attend an executive session on economic development. The attorney, however, would remain barred from executive sessions pertaining to personnel decisions.
Under the current Freedom of Information Act, local governing bodies can only enter an executive session when members are "considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee."
Public agencies also can discuss in an executive session matters related to the security of public water systems or municipally owned utility systems, according to the law.
Haak's bill states that officials must publish notice of the intent to call an executive session on economic development along with the "specific purpose" of the session.
The governing body would be required to deliver an oral summary of the session to the public after the private discussion, and would have to record the summary in meeting minutes.
RECORDING REQUIREMENT
Other provisions in House Bill 1280 say officials must make and promptly file an audio recording of any executive session on economic development with the city clerk, who would have to retain the recording for a period of one year from the date of the session.
Nevertheless, the bill would exempt the audio file from disclosure under open-records law.
Under Haak's bill, if a citizen challenged the discussion during an executive session on economic development through a lawsuit in circuit court, the court would be able to review the audio recording to determine if the discussion during the closed session was improper.
During a meeting of the Arkansas Freedom of Information Act Task Force on Monday, members could not secure enough "yes" votes to make a recommendation on the bill one way or the other.
Members voted 4-3 to recommend adoption of the amended bill, missing the threshold of five votes needed to make a recommendation.
The task force had voted in late January not to recommend House Bill 1280, but opted to approve passage of the bill in a voice vote in March after the legislation was amended.
At the meeting, which was held over Zoom following the bill's passage in the House, Haak said the bill pertains to "the early stages of a specific economic development project, specific to the 2017 [local job creation law]."
The additional language regarding audio recordings was an idea brought up in earlier discussions, Haak said, and the language was modeled after a Colorado law.
In response to an earlier comment from the task force that the bill was too broad, Haak said "we've really tried to very much narrow it down to be specific to the 2017 [law]," along with the other provisions on public notice, an oral summary and the audio recording.
She said many surrounding states have provisions in their open-records laws that allow economic-development discussions to happen during an executive session.
CRITICS RESPOND
Rusty Turner, editor of the Northwest Arkansas Democrat-Gazette and president of the board of the Arkansas Press Association, criticized the additional language on meeting recordings.
Turner, who attended the task force meeting as a spectator, described the proposed recordings of executive sessions as something "no one can ever hear unless there's a court challenge," and said the language "makes the bill worse, it doesn't make it any better."
"We're going to create a public document no one can get to," he added.
Jay Chesshir, president and chief executive officer of the Little Rock Regional Chamber of Commerce, said during a telephone interview Monday that his organization has not been involved with advocacy on House Bill 1280.
In the vast majority of the chamber's projects, chamber officials are asked to sign a confidentiality agreement, he said. Oftentimes, officials do not even know the identity of a company seeking to do business in the city, according to Chesshir.
Before going before a public body for a decision, officials will give specifics about the project "but often won't disclose the name of the company until the company is prepared for us to do so," Chesshir said.
Disclosure of the name of the company will become public by the time a property transaction has closed, if not before, according to Chesshir. He said he had "never had to go before a public body, in a public meeting, and need[ed] to disclose confidential information."
"I won't say that it couldn't happen, but we've typically found ways to work with our public officials so that we could have the discussions needed individually in order to not create a situation that would be against our current law," Chesshir said.
Eliza Gaines, managing editor of the Arkansas Democrat-Gazette, described House Bill 1280 as "a bad bill" during a telephone interview Monday.
She said the measure "excludes the public from the decision-making process about potential economic projects, and promotes secrecy [and an] assault on transparency."
Asked if the newspaper's advocacy efforts can be expected to shift to the Senate as a result of the House passing the bill, Gaines said yes.