OPINION | EDITORIAL: FOIA under attack (yet again)

No matter what they claim

Rep. Mary Bentley, R-Perryville, returns to her seat after listening to debate about SB307 on the floor of the House of Representatives at the Arkansas state Capitol on Tuesday, March 14, 2023. (Arkansas Democrat-Gazette/Colin Murphey)
Rep. Mary Bentley, R-Perryville, returns to her seat after listening to debate about SB307 on the floor of the House of Representatives at the Arkansas state Capitol on Tuesday, March 14, 2023. (Arkansas Democrat-Gazette/Colin Murphey)


Groucho Marx once said that politics is the art of looking for trouble, finding it all over, diagnosing it incorrectly, and applying the wrong remedies. The man knew comedy. And politics.

It may only seem that every time the Arkansas General Assembly gets into session some lawmaker wants to blind his constituents--and everybody else in the state--by changing the Freedom of Information Act, which is one of the better FOIAs out there. Sure enough and right on time comes House Bill 1726, which would exempt broad classes of communications of government documents.

According to the paper, if this bill passes, you wouldn't be able to see communications between public officials and government legal counsel related "to a needed determination of policy or action." Which sounds like it would cover pert-near everything in government, doesn't it? My, but some lawmakers don't want you to worry your pretty little head about what they are doing in your name--and with your dollars.

The types of records that would be exempted from public scrutiny: drafts, notes, recommendations, memos and other correspondence. The bill's sponsor (and there's always one) says: "I am proud that Arkansas has a strong Freedom of Information Act . . . ."

Yet he sees the need to change it.

"My bill aims to preserve strong government transparency while addressing the problems caused by people who weaponize FOIA and use it as a tool for harassment to simply throw sand in the gears of state government."

In other words, he wants to preserve transparency by telling you people not to demand so much transparency. And we mean you people, because the FOIA doesn't give special allowances to those of us pointy-headed types at the newspaper. FOIA means anybody can get government information. All you have to do is ask.

Imagine a lawmaker saying he wants to preserve transparency by weakening the FOIA! Just like the old Ayn Rand "Atlas Shrugged" lawmakers in that book/tantrum/magnum opus. Her not altogether fictional Congress would pass a Preservation of Livelihood Law that ruined livelihoods, a Fair Share Law that confiscated property, and a Public Stability Law that shattered public stability. Ms. Rand knew politicians as well as Mr. Marx.

(And when it rains, it pours cats and dogs. HB 1726 was filed on the same day yet another lawmaker filed an amendment on another bill to make it easier for public officials to meet without public notice. What's in the air at the Capitol? Besides secrecy and distrust of the public?)

This part about allowing communications between legal counsel and officials to be withheld: Very nice indeed. As if those of us who use the FOIA can't see what's going on here. If this bill is passed into law, then the only thing a government official would have to do to keep you in the dark on some garden variety, or not so garden variety, document is run it by Legal. Just make a copy of everything you do, mayor, and copy the boys in the legal department, and BINGO!, nobody gotta know nuthin'.

We know that government types don't like the FOIA. We know it can be work. We know that it would be easier if the public would just leave government work to the government types.

But that's not the law, and shouldn't be. Especially in a state like Arkansas, which is rightly proud of its model FOIA.

All this reminds of the old boy who got into a conversation with some government apparatchik who didn't want to follow the FOIA law, because, among other reasons:

I don't know how to put this together.

Old Boy: Maybe I can help.

I'm too busy doing my job.

Old Boy: Answering FOI requests is part of your job.

If I do this for you, I'll have to do it for everybody.

Old Boy: Okay then. Make copies. It'll be easier for you when the next person gets here.

I don't think you should have this information.

Old Boy: Who's your boss?

I don't want to right now.

Old Boy: It's the law. "Want" isn't involved.

A spokesman for the governor said Sarah Huckabee Sanders supports HB 1726. She should rethink this support.

"The governor supports improving Arkansas' FOIA laws, some of the most outdated in the country," the rep said.

Improving for whom? Government officials?

Outdated? How? Our FOIA is a national model.

We'll let the rep finish: "Private actors abuse our FOIA process for personal gain, causing increased costs to taxpayers and distraction from the important work of public servants, like law enforcement who encounter requests that impede ongoing investigations and delay justice for victims. This bill brings Arkansas in line with other states, to improve government services and cut costs."

So is the flack saying that because of a couple of (unnamed) bad actors, Arkansans curious about their government should be punished? Does anybody pushing these bills have any real proof of investigations being impeded because of FOIA requests? Maybe they could share that evidence with the, um. public. But that would defeat the point of keeping the public in the dark, wouldn't it?

The bottom line is that the public has a right to public information. Or it does now. No telling what's going to happen when the Ledge gets finished.

If the Ledge has the public's interest in mind, it will take these bills in the back and kill them with an ax. It would do all of Arkansas a lot of good. And preserve a Freedom of Information Act that has been illuminating Arkansas government since Winthrop Rockefeller and enlightened company gave it to us all those years ago.


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