Arkansas Citizens for Transparency submitted its third and final draft of a proposed constitutional amendment -- the Arkansas Government Transparency Amendment -- to Attorney General Tim Griffin on Monday for approval.
According to a news release from Arkansas Citizens for Transparency, the proposed constitutional amendment is limited to the creation of an Arkansas citizen's right to government transparency, that a law making government business less transparent must be approved by people of Arkansas, and that the state of Arkansas may be sued in state court for failure to comply with Arkansas government transparency laws. Griffin has 10 working days to either approve or reject the amendment draft.
[READ: Draft of proposed Arkansas Government Transparency Amendment]
Organizers said a proposed initiated act -- the Arkansas Government Transparency Act -- which will lay out the mechanics of the amendment, will be submitted within the next week. A final meeting for public input to finalize the language of the proposed initiated act is scheduled for Wednesday from 4 p.m. until 5:30 p.m. over Zoom. Organizers said a link to the meeting will be posted on the group's AR Citizens for Transparency Facebook page one hour in advance of the Zoom meeting.
Once the drafts are approved, organizers have until four months prior to the 2024 General Election to gather and have verified 90,804 signatures for the proposed amendment and 72,563 signatures for the proposed initiated act. If placed on the ballot and passed, the proposed amendment would repeal Act 7 of 2023 that was passed during the recent special session and would put the Arkansas Freedom of Information Act back to how it existed as of Sept. 1, 2023.
Changes that were proposed to the Arkansas Freedom of Information Act earlier this year by Arkansas Gov. Sarah Huckabee Sanders and Republican members of the General Assembly provided the impetus to the formation of the group, but former state lawmaker Nate Bell, who left the Republican Party several years ago to become an independent, said Monday that it had become apparent over a number of years that assaults on the public's right to know in Arkansas were increasing.
"It's really been over the last two sessions," Bell said, that efforts to weaken the Freedom of Information Act came to a head in the General Assembly, although he said efforts seemed to have been ramping up over the last several sessions.
"It's just been intensifying," he said, "and it's become clear they aren't going to back down. They're going to keep coming after it so it's time to take it out of their hands."
Bell said the proposed amendment -- which he said will be followed by the proposed initiated act -- is intended to remove the Legislature's ability to weaken the Freedom of Information Act without direct permission from the people of Arkansas.
"It's just making sure that politicians can't change the people's right to transparency without first referring it to the people," he said. "That's what Article V of the Arkansas Constitution is all about."
Bell said historically, there have been amendments to the Freedom of Information Act that were needed and his group isn't trying to prevent the ability of the Legislature to make changes, "if there is a legitimate need to do so."
"I'm certain that as technology changes and things change in general, there are things that will come up where, for whatever reason, something needs to be secured and not made public," he said. "We want to make sure there's a mechanism to do that but ultimately it's the people who should have the final say."
David Couch, a Little Rock attorney and committee member, agreed that efforts to chip away at the ability of the people of Arkansas to review public information have been intensifying, to the point, he said, that this year's efforts amounted to a "full frontal assault," by state government on transparency.
"They've been slowly chipping away at it for years," Couch said. "But when the General Assembly met this year in the special session, it was like a full frontal assault on Freedom of Information and government transparency."
Act 7 of the General Assembly that was passed during the special session was initially proposed by Gov. Sarah Huckabee Sanders as an overhaul of the state's open records law but was scaled back considerably following pushback from a broad range of people from all across the ideological spectrum. Sanders called the session after a Little Rock attorney and blogger, Matt Campbell, submitted FOI requests related to travel in the governor's office and a $19,000 lectern that has created a firestorm of controversy.
The first attempt during the session to amend Arkansas' Freedom of Information Act included a "deliberative process" exemption that would have shielded records "that comprise part of the process by which governmental decisions and policies are formulated" from disclosure.
It also included a provision to exempt documents prepared by an attorney from disclosure, something the Republican governor said was needed so the state wouldn't be forced to release its legal strategy before discovery.
In addition, the bill would have made it harder for people to recover legal fees for lawsuits filed under the Freedom of Information Act, something that critics said would hurt those who couldn't afford attorneys otherwise.
Critics said the bill, as written, would exempt virtually all government records from disclosure.
A second bill aimed at amending the Freedom of Information Act would have shielded "records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department."
Sanders said the changes to Arkansas' Freedom of Information Act were needed to make government more efficient, claiming activists were using the law to slow down her agenda.
However, fellow Republicans raised arguments against the governor's proposed changes, arguing the sunshine law was a useful and essential tool for government accountability. The Republican committees of Saline and Pulaski counties released statements against a previous bill to change the Freedom of Information Act.
As passed, Act 7 exempts from the open-records law documents related to the governor's Arkansas State Police security detail and "records that reflect the planning or provision of security services provided" to constitutional officers, Supreme Court justices and Court of Appeals judges.
On Monday, Couch said he has talked to many people all over Arkansas about the proposals and said support for protecting the Freedom of Information Act has been nearly universal.
"Honestly," he said, "I don't think I've met anyone who has said they think this is a bad idea ... It'll be really interesting to see what happens once the campaign actually starts."
The group laid out its criteria for the constitutional amendment in a press release last month.
Enshrine the Arkansas Freedom of Information Act, as it existed on September 1, 2023 (before the September 2023 special session), into the state constitution;
Ensure that any further changes to the Arkansas Freedom of Information Act that reduce government transparency may only be approved by a vote of the people of Arkansas, while providing that laws that increase government transparency may be passed by the General Assembly;
Change as little as possible in the existing Arkansas Freedom of Information Act, with the primary exception being to provide a definition for "public meeting," which has been a hole in the Arkansas Freedom of Information Act for some time;
Safeguard the ability of any citizen of Arkansas to enforce the Arkansas Freedom of Information Act by protecting their ability to recover attorney's fees in the event that a Freedom of Information Act request is wrongfully denied;
Create a penalty for bad actors who knowingly violate the Arkansas Freedom of Information Act;
Account appropriately for the security of public officials and their minor children, balanced with the public's right to know how our tax dollars are spent; and
Keep the amendment language as simple as possible, while taking into account the vast number of laws existing in the Arkansas Code affecting government transparency.
Couch said during the regular session and the special session, all of the calls he received were from people who feared efforts to gut the state's open records law would be successful. But, he said, those plans were stymied by broad opposition from across the political spectrum, a plan was needed to try and prevent a replay later.
"We took that energy we were going to get from a referendum and decided we just needed to stop this from happening ever again," he said. "That's how the idea for a constitutional amendment was born."