A citizen-led attempt to protect the Arkansas Freedom of Information Act from legislative interference took another step Monday with the submission of proposed initiated act intended to provide enabling language to a proposed constitutional amendment that was submitted last week.
On Monday, Arkansas Citizens for Transparency -- a non-partisan citizens group that submitted a constitutional amendment proposal to enshrine the Arkansas Freedom of Information Act in the Arkansas Constitution on Nov. 27 -- followed that up with the submission of the popular name and ballot title for the "Arkansas Government Transparency Act" to Attorney General Tim Griffin for approval. If the proposal passes muster and receives the required number of signatures during a petition drive, it will be put to Arkansas voters to decide in the November 2024 General Election.
Under Arkansas law, Griffin has 10 working days to either approve or reject the amendment draft.
In a press release issued late Monday afternoon, the group said the submission was part of its planned "two-part transparency package," to modernize, clarify and update the Freedom of Information Act of 1967. In its release, the group said the amendment has the proposed principles of government transparency and accountability and the initiated act has the proposed policies to support those principles.
"This proposed initiated act is the product of many rounds of public feedback," said state Sen. Clarke Tucker, chair of the drafting committee, in the release. "Arkansas' motto is REGNAT POPULUS, which means 'The People Rule', so it is only right that the public had heavy influence in the final language. We appreciate everyone who took the time to participate in this populist drafting approach."
Members of the drafting committee include Tucker, former state representative Nate Bell, attorney David Couch, attorney Jennifer Waymack Standerfer law professor and Arkansas Democrat-Gazette columnist Robert Steinbuch attorney John E. Tull, III, and Arkansas Press Association Executive Director Ashley Kemp Wimberley.
Once the drafts are approved, organizers have until four months prior to the 2024 General Election to gather and have verified 90,804 signatures for the proposed amendment and 72,563 signatures for the proposed initiated act. If placed on the ballot and passed, the proposed amendment would repeal Act 7 of 2023 that was passed during the recent special session and would put the Arkansas Freedom of Information Act back to how it existed as of Sept. 1, 2023. It would also repeal Arkansas Code § 6-13-619(e), as amended by Act 883 of 2023, concerning an executive session for a school board, superintendent, and attorney to discuss pre-litigation, litigation, and settlement
Changes that were proposed to the Arkansas Freedom of Information Act earlier this year by Arkansas Gov. Sarah Huckabee Sanders and Republican members of the General Assembly provided the impetus to the formation of the Arkansas Citizens for Transparency, but Bell, who left the Republican Party several years ago to become an independent, said last week that it had become apparent over a number of years that assaults on the public's right to know in Arkansas were increasing.
Act 7 of the General Assembly that was passed during the special session was initially proposed by Sanders as an overhaul of the state's open records law but was scaled back considerably following pushback from a broad range of people from all across the ideological spectrum. Sanders called the session after a Little Rock attorney and blogger, Matt Campbell, submitted FOI requests related to travel in the governor's office and a $19,000 lectern that has created a firestorm of controversy.
The first attempt during the session to amend Arkansas' Freedom of Information Act included a "deliberative process" exemption that would have shielded records "that comprise part of the process by which governmental decisions and policies are formulated" from disclosure.
It also included a provision to exempt documents prepared by an attorney from disclosure, something the Republican governor said was needed so the state wouldn't be forced to release its legal strategy before discovery.
In addition, the bill would have made it harder for people to recover legal fees for lawsuits filed under the Freedom of Information Act, something that critics said would hurt those who couldn't afford attorneys otherwise.
Critics said the bill, as written, would have exempted virtually all government records from disclosure.
A second bill aimed at amending the Freedom of Information Act would have shielded "records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department." Sanders said the changes to Arkansas' Freedom of Information Act were needed to make government more efficient, claiming that, "radical, left-wing activists," were using the law to slow down her agenda.
However, fellow Republicans raised arguments against the governor's proposed changes, arguing the sunshine law was a useful and essential tool for government accountability. The Republican committees of Saline and Pulaski counties released statements against a previous bill to change the Freedom of Information Act.
As passed, Act 7 exempts from the open-records law documents related to the governor's Arkansas State Police security detail and "records that reflect the planning or provision of security services provided" to constitutional officers, Supreme Court justices and Court of Appeals judges.
On Monday, Couch said the act would also establish the "Arkansas Government Transparency Commission" to assist citizens in accessing records and public meetings, and to enforce government compliance with the law. The five-member commission would be composed of three members appointed by the Arkansas Supreme Court, one member by the Speaker of the House and one member by the Senate President Pro Tempore. Three members would be required to be licensed attorneys, one member would be required to have demonstrated expertise working with government transparency laws of Arkansas and one would be required to have experience as a journalist or media representative.
"There's some changes that needed to be made to the existing Freedom of Information Act and there's some clarifications that are needed," said Couch on Monday evening.
The commission, Couch said, will provide assistance both to citizens requesting information and to public employees tasked with fulfilling information requests.
"If you request information and you feel like the state has denied your request incorrectly then you have an avenue to go to this commission and file a complaint," he said. "They'll have the authority to require the state to comply."
On the flip side, he said, if a department should need extra time to comply with a particularly large information request, it can go to the commission to ask for more time.
"It's really in the role of an ombudsman," Couch said. "That's what the original concept was, an organization in the state that will facilitate cooperation between the state and the requester to get the information they need."
Modeled after the state ethics commission, Couch said the commission will be "100%" independent of influence by the General Assembly or the governor.
"This was generated as a result of the public comments we got," he said. "We tried to take the ideas and problems people brought up during that process and incorporate it into a statute to deal with all of that."