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by Robert Steinbuch | July 23, 2023 at 1:50 a.m.
Robert Steinbuch

A corollary to the caution about the uninformed repeating history's bad parts is that these folks also don't learn from the good parts.

In 1967, Gov. Winthrop Rockefeller signed the most significant Arkansas law protecting us from tyranny--the Freedom of Information Act (FOIA). Rockefeller's action should be revered; a once-in-several lifetimes accomplishment.

In 1999, as Gov. Mike Huckabee aggressively upgraded Arkansas' antiquated technology, he signed legislation creating the Electronic Records Study Commission to evaluate the FOIA in light of then-nascent electronic records and make recommendations for updates to the law.

The commission developed these 10 proposals:

1. All information stored in computers owned or operated by or on behalf of any agency is a "public record" ...

2. Agencies should promote public access to records in electronic form ... and should ensure that all records are maintained in a form that can be accessed through available technology ...

3. Agencies should be knowledgeable about records they keep and should maintain standards of accuracy and security ... to distinguish confidential records from those that are open to disclosure.

4. Agencies using electronic records should make nonexempt electronic information available to the public through read-only interfaces via computers in public locations, electronic reading rooms, and on the Internet.

5. Agencies using electronic records should make available:

a. a description of the types of information stored in computers.

b. instructions on how to access information that is available to the public.

c. internal policies and procedures for responding to FOIA requests.

6. Electronic information not specifically exempted by statute should not be withheld on the grounds that it is mixed with exempt information ...

7. Individual privacy issues may need to be reconsidered and rebalanced against public access in light of emerging technologies.

8. Custodians should release electronic information in the form requested ...

9. Costs of government documents should not be a barrier to access, regardless of whether government records are available from private information providers ...

a. the public should only be charged the actual cost, verifiable and itemized, of reproducing or otherwise providing electronic information.

b. actual cost should not exceed the incremental cost of providing the data ...

c. agencies may elect to provide access at reduced or no charge, and should do so whenever appropriate.

10. Time limits for responding to an FOIA request should be equivalent for paper and electronic records ...

Nine recommendations expanded public access. And the one remaining recommendation--item 7--laid bare that any future limitation should solely address protecting individuals' privacy when their personal information winds up in government records--not reducing the public's access to records concerning officials' actions.

Indeed, a member of the commission recently confirmed to me that the panel only envisioned future FOIA revisions that would increase public access to records of governmental action--not revisions decreasing access. He also called appeals to impose labor charges on FOIA requesters "ridiculous." After all, he said, labor costs were already paid for by taxpayers.

Similarly, constitutional conservative Rep. Richard Womack reflected commission ideals when he noted--in his opposition to a FOIA-narrowing bill last session--that everyone supporting that bill was a government employee who would conveniently benefit from dramatically reduced transparency. The attorney general's office also testified for that bill. It failed.

Conservatives historically embraced limited government and understood that when left unchecked, government grows like kudzu--swallowing our rights along the way. If big government is bad--it is--unchecked government is worse. The dark lesson of communism is that malign behavior results from opaque government--irrespective of allegedly good intentions.

Ronald Reagan famously said "trust but verify," understanding that skepticism and oversight aren't disrespectful; they're the quintessence of common sense. And the key to verifying whether government misbehaves is a vigorous FOIA. It might not be efficient, but it's essential.

In 2017, the Legislature employed the same formula it used in establishing the commission, this time to create the FOIA Taskforce, charged with evaluating FOIA amendments for the Legislature.

Like the law establishing the commission, the statute constituting the taskforce requires representatives appointed by all stakeholders: the governor, president of the Senate, speaker of the House, Press Association, Freedom of Information Coalition, Society of Professional Journalists, Broadcasters Association, Association of Counties, and Municipal League.

Our meetings are always open to the public. Never has this been disruptive, and we celebrate input on the "people's law" from the people.

The taskforce composition and open meetings ensure that all voices are heard.

Taskforce members--all experienced, knowledgeable, and collegial--work amazingly well together, notwithstanding genuinely diverse perspectives. (Notably, the commission also succeeded while recounting "heated" discussions, because its members were also professionals.)

Legislators can't be compelled to present their bills before the taskforce. But if sponsors don't, that's a rebuke of the taskforce, the Legislature that created it, and the concern that slapdash FOIA legislation makes for bad government. I won't vote for anyone eschewing the taskforce or seeking to weaken the FOIA.

This successful history of addressing FOIA transformation through an open--that is, transparent--legislatively created committee with diverse membership, appointed through a democratic process, shouldn't be forgotten.

This is your right to know.

Robert Steinbuch, professor of law at the Bowen Law School, is a Fulbright Scholar and author of the treatise "The Arkansas Freedom of Information Act." His views do not necessarily reflect those of his employer.

Print Headline: An FOIA history lesson


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