The Arkansas Attorney General's Office rejected ballot language on Monday for a proposed constitutional amendment to strengthen the state's Freedom of Information Act.
In a letter to Arkansas Citizens for Transparency, the group behind the amendment effort, the attorney general's office said the proposal's ballot language suffered from a "lack of clarity on key terms," among other issues.
Among the terms Arkansas Citizens for Transparency failed to clarify were "government transparency," and "notice, meetings and records," the attorney general's office said in its letter rejecting the proposed amendment's ballot title, which is language meant to summarize the amendment to voters.
"Your proposed text hinges on terms that are undefined and whose definitions would likely give voters serious ground for reflection," the attorney general's office said in the letter.
Before a group can begin collecting signatures to get a proposed constitutional amendment on the ballot, the attorney general first needs to approve its ballot language. Under Arkansas law, the attorney general has the authority to approve, reject or rewrite the ballot title and the popular name.
Arkansas Citizens for Transparency responded in a news release saying the U.S. and Arkansas constitutions don't provide definitions for the terms it uses.
"As no citizen asked what 'government transparency' means, we did not expect our Attorney General to ask for that definition," Arkansas Citizens for Transparency said in a news release. "The Constitutions grant rights through broad terms which the people understand. The Constitutions do not define free speech, free exercise of religion, or the right to bear arms. Our Attorney General's Opinion indicates that the right to government transparency should be more restricted than our other rights in the Constitution."
If approved the proposed constitutional amendment would give Arkansans a constitutional right to government transparency and a right for Arkansans to file legal action against the government if it fails to comply with a lawful records request. The proposed amendment also would make records related to security subject to disclosure within three months.
It also would make it difficult for the General Assembly to change the Freedom of Information Act. If the state Legislature wanted to make changes to the sunshine law, two-thirds of lawmakers in both chambers would need to approve the change, which would not take effect until after Arkansans voted to approve it through a referendum in the next general election. If the Legislature wanted to make an immediate change to the Freedom of Information Act, nine-tenths of lawmakers in both chambers would have to approve the change, which would take effect immediately upon passage. However, voters would get a chance to veto and overturn the law through a referendum at the next general election.
Attorney General Tim Griffin said the proposed constitutional amendment's ballot language also failed to meet other standards, such as failing to contain the full text of current laws the amendment would change.
Backing up his assertion, the Republican attorney general cited a 2020 North Dakota Supreme Court case, Haugen v. Jaeger, where the court struck down a proposed amendment to the state's constitution as it referenced the laws it sought to change through citation instead of by quoting the statutes directly. Griffin cited the North Dakota case, as the state has a similar citizen-initiated constitutional amendment process to Arkansas' and the Arkansas Supreme Court has yet to weigh in on the specific issue.
Unlike in the North Dakota case, the proposed Freedom of Information Act amendment does not cite specific Arkansas laws it seeks to change, but rather makes generalized references to the amendment changing state laws around open meetings and records.
David Couch of Arkansas Citizens for Transparency said the group considered the North Dakota case when crafting the amendment, saying the choice to avoid specific references to changes in state law would help the ballot title comply with the ruling. Instead, the amendment generalized references to "the provisions of law requiring the disclosure of public records," instead of citing a specific statute such as the Arkansas Freedom of Information Act of 1967.
"The fact that you incorporate state statutes into your proposal without citing the statutes does not insulate your proposal from the problems the Haugen court identified," Griffin said in the letter.
Griffin's office also rejected the proposed amendment for not clarifying how it will impact state laws around open records and meetings. Griffin cites examples such as a 2020 law regulating open meetings, which allows public bodies to go into closed session for specific reasons such as to discuss employment or a disciplinary action against an employee.
The attorney general's office said it is unclear whether the proposed amendment intends to repeal discretionary powers, such as those that allow some government meetings to be closed to the public.
"If it is your intent to repeal discretionary exemptions, that would need to be noted in the ballot title," the attorney general's office said in its letter. "But because your intent is not entirely clear at this point, I am unable to ensure the ballot title is not misleading by omission."
Lastly, Griffin's office rejected the proposed popular name for the amendment, the shorthand used to refer to the proposal. Arkansas Citizens for Transparency used the popular name "The Arkansas Government Transparency Amendment," something Griffin rejected for having "partisan coloring," as the term "transparency" has positive connotations that could unfairly sway voters, he said.
"I am surprised he didn't approve this one, I am shocked that [Griffin] found so many reasons to reject it," Couch said.
The group also has submitted a proposed initiated act to the attorney general's office for approval, which would include more specific changes to the state's sunshine law, such as creating the Arkansas Transparency Commission to help citizens obtain records or defining what kinds of meetings need to be open to the public. The attorney general's office has until Dec. 18 to render a decision on the proposed initiated act.
The push to strengthen the Arkansas Freedom of Information Act began during a special session Gov. Sarah Huckabee Sanders called in September to overhaul the state's sunshine law. After attorney and blogger Matt Campbell had requested communications and records on expenditures by Arkansas State Police related to Sanders' security detail, the Republican governor called lawmakers back to Little Rock, saying the Freedom of Information Act needed to be amended to better take the governor's safety concerns into account.
Sanders also said the 1967 Arkansas Freedom of Information Act -- considered by many as one of the more liberal transparent open records and meeting laws in the country -- slowed down the working of state government, as state officials often choose not to discus certain topics, such as potential business agreements, over email out of fear the emails would be subject to a records request.
However, after receiving bipartisan pushback from the public, Sanders and the Legislature agreed to a scaled-down law that exempts "records that reflect the planning or provision of security services provided" to the state's constitutional officers.