The Arkansas Citizens for Transparency committee on Thursday submitted to the attorney general's office the committee's second version of a proposed initiated act aimed at strengthening the Arkansas Freedom of Information Act.
The committee's filing came after Attorney General Tim Griffin on Monday rejected the committee's initial proposed ballot language for its proposed initiated act. The Republican attorney general said he rejected the proposed popular name and ballot title due to provisions that he said would be clearly unconstitutional if enacted and what he said was the lack of clarity for several key terms.
On Wednesday, the committee submitted to the attorney general's office its second iteration of a proposed constitutional amendment that is a companion to the proposed initiated act. On Dec. 11, Griffin rejected the committee's initial proposed ballot language for the proposed constitutional amendment.
The Arkansas Citizens for Transparency committee's chairman is Nate Bell of Mena, a former state representative who served as a Republican and then as an independent, and its vice chairman is attorney David Couch of Little Rock.
The committee submitted its second version of a proposed initiated act to Griffin's office on Thursday with four different popular names and ballot titles for the proposed act. The proposed popular names include the Arkansas Open Meetings and Open Records in State and Local Government Act, the Arkansas Government Transparency Act, the Arkansas Government Disclosure Act, and the Arkansas Government Openness Act.
The committee's second version of the proposed initiated act would have the state House speaker, the state House minority party leader, the state Senate president pro tempore, the state Senate minority party leader and the lieutenant governor appoint one member each of the Arkansas Government Transparency Commission.
The commission 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.
Under the committee's initial proposed initiated act, the commission's five members would include three appointees by the Arkansas Supreme Court and one appointee each by the Senate president pro tempore and the speaker of the House. Griffin said Monday that under the court's ruling in Spradlin v. Arkansas Ethics Commission, the requirement that the state Supreme Court appoint members to this transparency commission is clearly unconstitutional.
The Arkansas Citizens for Transparency Committee said Thursday in a news release that its second version of the proposed initiated act also includes new language from a bill proposed by Rep. Vivian Flowers, D-Pine Bluff, during this year's regular session.
The committee said the new language requires that notice of the regular meetings be published online at least 48 hours before the meeting takes place if the entity or governing body of the entity owns or maintains a website or a social media page, and furnished at least 48 hours before the meeting takes place to anyone who requests the information.
The Arkansas Citizens for Transparency committee's second version of the proposed initiated act would define government transparency as "the government's obligation to share information with its citizens."
Among other things, this proposed initiated act also would define a public meeting; repeal Act 883 of 2023, which allows school boards to meet in executive sessions to discuss legal matters; give courts the ability to assess civil penalties against government bodies that fail to lawfully comply with a records request; and allow a litigant to recoup legal fees if a court finds they "substantially prevailed" in their lawsuit.
The Arkansas Citizens for Transparency committee's push to strengthen the Freedom of Information Act began after the Sept. 11-14 special session called by Gov. Sarah Huckabee Sanders in which the Republican governor proposed overhauls to the state's sunshine law. The special session came after attorney and blogger Matt Campbell had requested communications and records on expenditures by Arkansas State Police related to security for the governor and first gentleman Bryan Sanders.
The governor maintained the state's Freedom of Information Act, which dates to 1967, was outdated and needed changes to make government more efficient and to protect records related to the governor's security detail.
After receiving substantial bipartisan pushback from the public, Sanders and the General Assembly 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 also would make records related to security than are more than three months old presumed to be subject to disclosure.
To rebut this presumption and prevent disclosure of the requested public record, the custodian would be required to initiate review by the Arkansas Government Transparency Commission within three days of receiving the request for disclosure and to serve the requester with notice of the review, and have the burden to prove that confidentiality of the public record is essential to the ongoing security services under state law.
The commission may prohibit disclosure of the requested public record for a period not to exceed two years, and the commission may extend the confidentiality of the record for additional periods not to exceed two years each.
Under Arkansas law, the attorney general has the authority to approve, reject or rewrite the ballot title and the popular name for proposed ballot measures.
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 initiated 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, to the secretary of state's office by July 5 to qualify their proposed initiated acts for the Nov. 5, 2024, general election ballot.
The deadline for the attorney general to act on the committee's proposed ballot language for the proposed initiated act is Jan. 9 barring unforeseen circumstances, said Jeff LeMaster, a spokesman for the attorney general's office.
PROPOSED CONSTITUTIONAL AMENDMENT
The Arkansas Citizens for Transparency Committee also submitted four different proposed popular names and proposed ballot titles for its second iteration of a proposed constitutional amendment to the attorney general's office on Wednesday.
The proposed popular names include the Open Meetings and Open Records in State and Local Government Amendment, the Arkansas Government Transparency Amendment, the Arkansas Government Disclosure Amendment, and the Arkansas Government Openness Amendment.
In rejecting the proposed ballot language for the Arkansas Citizens for Transparency committee's proposed constitutional amendment on Dec. 11, Griffin 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," Griffin said.
The second iteration of the proposed constitutional amendment also defines government transparency as "the government's obligation to share information with citizens."
Under this proposed constitutional amendment, the General Assembly shall not make a law that diminishes public access to government except under certain circumstances.
Under this proposed amendment, a bill diminishes public access to government if any provision of the bill does any of the following:
— Makes a public process, public meeting, public notice or public record less open, accessible or available to the people.
— Modifies the legal standard for recovery of penalties, fees, expenses or costs in any case concerning government transparency, or
— Limits or restricts the recovery of penalties, fees, expenses or costs by a citizen in any case concerning government transparency.
The proposed amendment also would define when a public process, public meeting, public notice or public record is less open, accessible or available to the people.
The proposed amendment would make it difficult for the General Assembly to enact a law to diminish public access to government.
If the state Legislature wants to propose a measure that diminishes public access to government under this proposed constitutional amendment, two-thirds of the 100-member House of Representatives and the 35-member Senate 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 wants to make an immediate change that diminishes public access to government under this proposed amendment, nine-tenths of the state House of Representatives and state Senate 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.
The Arkansas Citizens for Transparency committee said in a news release Wednesday that the committee "is hopeful that the changes in this Amendment address the concerns the Attorney General expressed in his Opinion on December 11.
"As we said at that time, we do not consider this Amendment to be partisan, but rather a declaration of the right of all Arkansans to transparency and openness at every level of government," the committee said. "Arkansas has had one of the strongest Freedom of Information Acts in the country for 56 years and it is our hope that, with this Amendment, it will continue to serve as a model for government transparency for the nation many more years to come."
The deadline for the attorney general to act on the proposed constitutional amendment's proposed ballot language is Jan. 8 barring unforeseen circumstances, LeMaster said.
Certification of the proposed popular name and the proposed ballot title for the committee's proposed constitutional amendment is required to open the door for the committee to start collecting signatures of registered voters to try to get the committee's proposed constitutional amendment on the general election ballot.
Ballot committees are required to turn in 90,704 signatures of registered voters, including signatures from 50 counties, to the secretary of state's office by July 5 to qualify their proposed constitutional amendments for the 2024 general election ballot.
Besides Bell and Couch, the Arkansas Citizens for Transparency committee's other members include committee treasurer Ashley Wimberley, executive director of the Arkansas Press Association, and committee secretary Joyce Elliott of Little Rock, who is a former Democratic state senator.
The committee's other members include attorney Jennifer Standerfer of Bentonville; 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 III and Robert 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.