Arkansas Attorney General Tim Griffin on Monday rejected proposed ballot language for the Arkansas Citizens for Transparency committee's proposed initiated act that is aimed at strengthening the state's Freedom of Information Act.
The Republican attorney general said in a letter dated Monday to committee members and attorneys David Couch of Little Rock and Jen Standerfer of Bentonville that having reviewed the text of the proposed initiated act, "I must reject your popular name and ballot title due" to provisions that would be clearly unconstitutional if enacted and the lack of clarity for several key terms.
Under Arkansas law, the attorney general has the authority to approve, reject or rewrite the ballot title and the popular name. The Arkansas Citizens for Transparency committee's proposed popular name for the proposed initiated act is the Arkansas Government Transparency Act.
Certification of the proposed popular name and the proposed ballot title for the committee's initiated act is required to clear the way for the committee to begin collecting signatures of registered voters to try to get its proposed initiative act on the 2024 general election ballot. Ballot committees are required to turn in 72,563 signatures of registered voters in Arkansas, including signatures from 50 counties, into the secretary of state's office by July 5 to qualify their proposed initiated acts for the November 5, 2024 general election ballot.
The Arkansas Citizens for Transparency committee's proposed initiated act would create the Arkansas Transparency Commission, which would consist of five members, three appointed by the Arkansas Supreme Court and one each appointed by the Senate president pro tempore and the speaker of the House.
It would have the authority to issue advisory opinions, conduct transparency audits, direct government officials to comply with records requests and issue disciplinary actions for noncompliance, including filing lawsuits to make government officials comply with records requests.
Griffin said in his letter dated Monday that under Spradlin vs. Arkansas Ethics Commission, the requirement that the state Supreme Court appoint members to this transparency commission is clearly unconstitutional.
"In Spradlin, the Court reviewed a challenge to an initiated act that created the Arkansas Ethics Commission and required the Chief Justice of the Arkansas Supreme Court to appoint one of the five members of the commission," he wrote. "The Court held that requiring a judicial-branch official to appoint someone to a commission that is not related to 'the administration of justice' violated the article 4, sections 1 and 2 of the state constitution, which strictly separate the powers of Arkansas's three coordinate branches of government.
"The powers and duties of the Arkansas Ethics Commission as described in Spradlin are nearly identical to the powers and duties of the commission described in your proposed text," Griffin said in his letter to Couch and Standerfer. "Therefore, Spradlin's holding indicates that your proposed method of appointments to the commission is unconstitutional."
Couch said Griffin raises a legitimate concern about the separation of powers.
"We already were going to correct that," he said.
Nonetheless, Couch said Griffin seems to misunderstand his role in reviewing ballot titles and popular names of proposed ballot measures.
The ballot title is supposed to be a summary of a proposed initiated act or a proposed constitutional amendment to allow voters to understand what a proposed ballot measure covers, he said.
Couch said Griffin is requiring the committee to make more changes to the text of its proposed ballot measures than he should.
Among other things, Griffin said Section 8 of the proposed initiated act is an attempt to define what the term "public meeting" means.
Griffin said that "The wording of this definition confusingly references certain powers being 'delegated' to the governing body: 'Public meeting' includes without limitation ... [c]ommunication between two (2) or more voting or nonvoting members of a governing body for the purpose of exercising a responsibility, authority, power or duty delegated to the governing body on any matter on which official action will foreseeably be taken by the governing body.'
"It is unclear what you mean by a 'responsibility, authority, power or duty' being 'delegated to the governing body,' " he wrote. "This vague phrasing prevents me from ensuring your proposal is adequately summarized in your ballot title."
In addition, Griffin said "Please be aware of an issue with partisan coloring in your proposal," adding that he made the same point last week about "partisan coloring" with the committee's proposed constitutional amendment aimed at strengthening the Freedom of Information Act.
"At its core, partisan coloring is an 'attempt to influence' voters 'one way or the other' on the proposal's merits," he said.
The committee's proposed popular name and ballot title for the proposed initiated act uses the term "transparency," Griffin said.
"As one of my predecessor's concluded in Opinion No. 2012-028 and as myself concluded in Opinion No. 2023-113, the use of the term 'transparency' in a popular name 'has an obvious positive ring to it' that seems more designed to persuade than inform," he wrote. "This raises a concern about partisan coloring.
"Nowhere in Opinion 2023-113 or in this opinion have I said that 'government transparency' is a partisan issue," Griffin said. "Rather, I -- like my predecessor who was of a different political party -- am saying that the use of the term 'transparency' is tinged with partisan coloring. I am flagging this for you now in case you would like to provide an alternative in a future subcommission."
Couch said Griffin's opinions seem to stem from his concern about transparency, but the average Arkansan understands what transparency means.
He said the committee will make changes to address Griffin's concern about the popular name of the proposal.
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 discuss 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 in the September special session to a scaled-down law that exempts "records that reflect the planning or provision of security services provided" to the state's constitutional officers.
The Arkansas Citizens for Transparency committee's proposed initiated act would make records related to security subject to disclosure within three months.
Griffin's rejection of the the committee's proposed ballot language for the proposed initiated act on Monday came a week after Griffin rejected proposed ballot language for the committee's proposed constitutional amendment aimed at strengthening the state's Freedom of Information Act. The proposed constitutional amendment is a companion to the proposed initiated act.
The proposed constitutional amendment is aimed at giving 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 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.
Couch said the committee hopes to resubmit proposed ballot language for the proposed constitutional amendment to the attorney general's office today, and then go back and revise the proposed ballot language for the proposed initiated act to resubmit to the attorney general's office.
The Arkansas Citizens for Transparency Committee amended its statement of organization in a filing Monday with the Arkansas Ethics Commission.
Nate Bell, who is a former representative who served as a Republican and then as an independent from Mena, continues as the committee's chairman and Couch is now listed as the committee's vice chairman rather than its treasurer.
Ashley Wimberley, executive director of the Arkansas Press Association is the committee's treasurer, and former state Sen. Joyce Elliott, D-Little Rock, is the committee's secretary.
The committee's other members include state Sen. Clarke Tucker, D-Little Rock; former state House Speaker Davy Carter who served as a Republican from Cabot; former state Sens. Keith Ingram, D-West Memphis, and Bruce Maloch, D-Magnolia; attorneys John Tull and Rob Steinbuch, both of Little Rock; Jimmie Calvin of Conway; and Greene County Republican Committee Chairwoman Katherine Bischof of Paragould.
Information for this article was contributed by Neal Earley of the Arkansas Democrat-Gazette.