A bill that would substantially overhaul the Arkansas Freedom of Information Act failed in the House Committee on State Agencies & Governmental Affairs on Wednesday by a vote of 9 against and 4 in favor after more than three hours of testimony from opponents and supporters of the bill.
House Bill 1726, introduced by Rep. David Ray, R-Maumelle, would have exempted many records from public scrutiny, drew vigorous opposition from members of the media, bloggers, county officials and others, with 28 people signed up to speak against it. Support, which drew 12 speakers, was drawn from public officials at the county and municipal levels, with both sides using examples of abuse of the current Freedom of Information Act statutes from both sides of the issue.
Ray’s bill would have exempted law enforcement records related to ongoing investigations from the act, and virtually any communications between agency officials and agency attorneys or records prepared or reviewed by attorneys would have been exempted under attorney-client privilege. It would have also triggered a requirement to pay for an employee or a contractor to fulfill the request at the rate of pay of the lowest paid employee or contractor with the necessary skill to process the request.
A second bill, House Bill 1610, by Rep. Mary Bentley, R-Perryville, was passed by the committee by a vote of 12 in favor and 3 against after about a half hour of testimony, most of which was in opposition to the bill. Bentley’s bill would amend the Freedom of Information Act to allow informal meetings between governing body members so long as less than a third of the entire body is present.
Ellen Kreth, publisher of the Madison County Record said an attempt by the Huntsville School Board in 2021 to cover up a sexual abuse scandal that occurred in the athletic department would never have come to light under Ray’s bill.
“The Madison County Record published a story exposing the school board’s attempted cover-up of player on player sexual abuse that had taken place in the Huntsville boy’s locker room for two years,” Kreth said. “Upon learning of the assaults the first thing the district administration, school board members and personnel did was seek to cover up not only the assaults, but their failure to report the assaults to the Arkansas Child Abuse Hotline.”
Kreth said the matter came to light when parents in the district approached the newspaper asking that the matter be looked into but she said the newspaper was stonewalled by district officials, forcing the newspaper to piece together the story through the use of documents obtained through the use of the state’s Freedom of Information Act statutes. After finding documentation proving school officials knew of the abuse but failed to report it, Kreth said, the resulting story led to charges being brought against the coach and the superintendent.
“This bill would have protected their behavior, kept secret from the parents the district’s attempts at the cover-up of their malfeasance and their failure to report the abuse,” she said. “This bill would gut FOIA and would have not only allowed, but would have enabled the district’s failure to report.”
Faulkner County Sheriff Tim Ryals, speaking for the bill, said most Freedom of Information Act requests that come to his office can be fulfilled quickly, “but there are some that can take hours or days or even weeks … depending on the nature of the request.
Ryals said abuse of the system prohibits the timely return of legitimate requests and places a burden on an office staff that is already straining under the workload. He said another problem comes from requests that are fulfilled but never picked up by the requesting party.
“We currently have a stack of FOIAs in our front office that we developed seven months ago,” he said. “We’re still waiting on someone to come pick them up.”
Luke Charleton, a Benton County resident, called House Bill 1726 “a bold overreach of self-serving government officials,” calling the Freedom of Information Act statute in its current form one of the best such laws in the nation.
“When I hear things comparing it to other states, I don’t want to lessen our FOIA law just because some other state government was able to do it,” Charleton said. “I don’t want that to happen in our state.”
Charleton said controversy over the 2020 elections and the covid-19 pandemic had resulted in a marked increase in requests for government records under the Arkansas Freedom of Information Act.
“We have recently been through a very trying three years,” he said. “We have all kinds of questions and it’s natural that these requests, in times like these, they should go up. That’s why FOIA was created, for the concerned citizen to be able to look into it and ask questions.”
Robert Steinbuch, a UALR law school professor and columnist for the Arkansas Democrat-Gazette, is a member of the Freedom of Information Act Task Force who co-authored the Arkansas Freedom of Information handbook sixth edition. He was effusive and animated as he argued against the bill on Wednesday. At one point, as one of Gov. Sarah Huckabee Sanders’ aides started to leave the hearing, Steinbuch slapped him on the back, saying loudly, “Go tell the governor it’s not a good bill,” as the committee room broke up with laughter.
He said the Freedom of Information Act Task Force’s opinion issued in opposition to the bill was a first for that body.
“They said this bill is not in the best interests of the state,” he said. “They have never issued an opinion like that before. That’s how bad this bill is.”
As he closed for the bill, Ray dismissed the concerns of those in opposition as “histrionics,” saying “the idea this bill will kill FOIA is patently false.”
But, just before the vote was taken, Rep. Richard Womack, R-Arkadelphia, said he would vote against the bill, noting that Richard J. Peltz-Steele of Massachusetts, who co-authored the Freedom of Information Act handbook with Steinbuch, was also in attendance and opposed the bill.
“We have the men who wrote the book in this room and they’re against [the bill],” Womack said. “Literally everyone who testified in favor of the bill has something to gain from its passage.”
Rep. Cindy Crawford, R-Fort Smith, said that although there are abuses to the current law, the provisions in the bill should be studied further and she recommended the bill go to interim study.
Attorney General Tim Griffin, whose office would be tasked with defending the state in any lawsuit filed over the bill, talked briefly with the Arkansas Democrat-Gazette before the hearing. Griffin did not attend the hearing himself but Ryan Owsley, deputy attorney general in the opinions section, accompanied Ray as he presented his bill to the committee.
Griffin called the state’s Freedom of Information Act statute, passed in 1967, “among the country’s strongest and most comprehensive,” but said it could be improved upon. He said the same provisions that require the most disclosure under the shortest timelines at the lowest cost to citizens comes at a high price “of more abuse, wasted money and less efficiency.”
“Our FOIA law hasn’t been updated in 20 years,” Griffin told the Democrat-Gazette. “Rep. Ray’s proposed reforms seek to balance government efficiency and transparency and reflect laws the federal government and other states already have.”
Bentley noted the late hour as she presented her bill but asked for passage by the committee because, she said, it would allow city and county governing bodies to meet and discuss pending actions without breaking the law under the looser restrictions her bill would provide.
“We have people who have been duly elected by our constituents and I believe their hands have been tied for the past 57 years,” Bentley said. “We have an imbalance of power where our county judges and our mayors, they can all visit but our JPs cannot, our city council members cannot, so it’s been inefficient and ineffective and an imbalance of power that we’ve had and that’s what I’m trying to correct.”
This story has been updated. It was originally published at 9:17 p.m.
CORRECTION: A previous version of this article misspelled the names of Madison County Record Publisher Ellen Kreth and Deputy Attorney General Ryan Owsley