Gov. Sarah Huckabee Sanders announced Friday during her call for a special legislative session plans to overhaul the Arkansas Freedom of Information Act, saying the state's sunshine law slows state government operations and exposes her and other constitutional officers to security risks.
A bill, backed by the Republican governor, would expand exemptions for records from disclosure under the Arkansas Freedom of Information Act, including records related to the governor's security, policymaking process for state agencies and records prepared by an attorney representing a state official. The bill also would make it harder for those who win lawsuits against local government agencies under the Freedom of Information Act to recover attorney's fees.
The special session is set to begin Monday, and will include bills to cut taxes and ban covid-19 vaccine mandates for government employees.
Sanders said overhauling the Arkansas Freedom of Information Act was personal, saying she has received death threats since taking office and that the desire to withhold documents related to her security detail came from the advice of experts.
If passed, the exemption on the governor's security records would become retroactive to Jan. 1, 2022. Sanders was sworn in as Arkansas' governor Jan. 10, 2023.
[DOCUMENT: Read House Bill 1003 » arkansasonline.com/99housebill/]
"Arkansas FOIA laws have largely been unchanged since they were signed in 1967," Sanders said during a news conference. "In a time before email, cellphones, text messages and sadly before some of the more aggressive polarization that we see across our country today."
For security, the bill would expand a carve-out in the Freedom of Information Act, exempting the Governor's Mansion security records, to also include records on the governor's state police security detail. The bill also would exempt records "that reflect the planning or provision of security services provided" to the state's constitutional officers, members of the General Assembly, and courts.
"The outcome of this proposal is not hard to imagine," Bill Kopsky, executive director of the Arkansas Public Policy Panel, said in a statement. "It will lead to greater fraud and abuse of office. It will lead to more secret deals developed in back rooms and sprung on the public at the last minute when it's too late for the public to have meaningful input."
The proposal to amend the Freedom of Information Act comes after attorney and blogger Matt Campbell filed a request seeking records from Arkansas State Police on how much it spent protecting Sanders. According to his lawsuit, Campbell has received some records, including documentation showing state police hired private pilots to fly the governor, but he expanded his request to include documents on the state's airplane's flight manifest and passenger lists.
Campbell, author of the Blue Hog Report, has tweeted frequently about his attempts to gain access to state police records on Sanders' travel. Campbell also has requested records on state police's expenditures when it accompanied Sanders on a trade mission to Europe in June, including costs for plane tickets and hotel rooms for her protection detail. However, when asked, Sanders said her proposal to amend the state's transparency law went beyond "any one particular person."
[DOCUMENT: Read Senate Bill 7 » arkansasonline.com/99bill7/]
"It's like they're grasping at straws to try to come up for some justification when what they really want to do -- which is exactly what they're doing -- which is gutting the [Freedom of Information Act]," Campbell said in an interview.
Regarding one of the lesser discussed aspects of the bill, which would make it harder for those who win lawsuits under the Freedom of Information Act to recoup attorney's fees, Campbell said, "It's going to be almost impossible for anybody to find an attorney that's willing to take on one of these cases for them."
Currently under the Freedom of Information Act, a court shall assess attorney fees for the plaintiffs if they received a significant portion of their records request for lawsuits against local government agencies. The bill would say the court may assess attorney fees for plaintiffs who "substantially prevailed," or if the defendant's position was "arbitrary or in bad faith."
Under identical proposals, House Bill 1003 and Senate Bill 7, state police will be required to issue quarterly reports to lawmakers that list the aggregate expenses of the governor's protection detail. The bill includes an emergency clause, meaning if approved by two-thirds of members in both chambers it would immediately become law.
"I understand the need for reasonable modifications to FOIA to protect the lives of the governor, her family and constitutional officers," Eliza Hussman Gaines, publisher of WEHCO Media Inc., the Arkansas Democrat-Gazette's parent company, said in a statement. "However, this bill also includes changes to FOIA that have nothing to do with personal safety, and that would severely affect citizens' right to know. Arkansas has one of the strongest FOI laws in the country, and I hope we are able to preserve that."
Another key piece of the bill, the deliberative process exemption, would mean an expansive category of state records would no longer be subject to disclosure which would include memoranda, letters, commutations, advisory opinions, recommendations and deliberations "that comprise part of the process by which governmental decisions and policies are formulated."
[Read the recently filed bills » arkansasonline.com/99governor/]
"Right now, a Chinese-owned state company operating in Arkansas could use their employees to FOIA for internal government documents," Sanders said.
The exemption also would include documents prepared by an attorney representing the state, something the bill's sponsor, State Rep. David Ray, R-Maumelle, said would protect attorney-client privilege.
"We are going to adopt attorney-client privilege so that the state is not inherently at a disadvantage in lawsuits, so that [litigants against the state] can't bypass discovery and immediately obtain the state's legal strategy to defend important laws that we passed like [the] LEARNS [Act], like the SAFE Act, like many others," Ray said.
oTHER STATES
Sanders downplayed the effect of her proposal, saying much of the language in the bill was copied from federal law and U.S. Supreme Court decision.
In 2021, in a 7-2 decision, the U.S. Supreme Court ruled in U.S. Fish & Wildlife Service v. Sierra Club that the deliberative process privilege in federal open record laws covered draft opinions from two federal agencies because they were "both predecisional and deliberative" even though the drafts "proved to be the agencies' last word."
"It is ridiculous to act as if this is some massive, radical change," Sanders said. "We are literally mirroring federal language."
The privilege is rooted in "'the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news,'" wrote Justice Amy Coney Barrett in the majority opinion referencing a prior U.S. Supreme Court ruling.
In a dissenting opinion, however, then-Justice Stephen G. Breyer argued that the agency draft opinions should not be covered by the exemption because they "reflect 'final' decisions regarding the 'jeopardy'" federally proposed actions would have caused.
Sanders said the language in the draft bill is "also similar to more than a dozen other states that have these same protections."
Several states including California, Illinois and Indiana have expressly included deliberative process or deliberative materials exemptions in their open record laws, according to a review of state laws by the Reporters Committee for the Freedom of the Press.
In other states, attorneys general have opined or courts have interpreted open record laws to exempt at least some records due to deliberative process privilege.
In a statement, the Arkansas Press Association said the bill "goes far beyond the goal of protecting our public officials and their families," and that it agreed to participate in a working group that would review changes to the Freedom of Information Act for the 2025 legislative session.
"For all intents and purposes, this bill will eliminate the ability to hold our government accountable by shielding processes that provide essential context for decisions that affect millions of Arkansans," according to a statement from the Arkansas Press Association.
While the exemption may not be included in Tennessee state law, deliberative process was described in a 2004 intermediate appeals court decision. Tennessee Gov. Bill Lee has repeatedly cited the exemption when declining to release documents, according to The Associated Press.
In Delaware, the office of the attorney general has opined that certain draft documents are exempt from public records requests even if state law does not have an express exemption and courts have not set a precedent for these documents.
Open record laws in other states include language that exempts certain security-related information and records that could constitute an invasion of personal privacy. These statutes, however, may not expressly refer to records concerning constitutional officers or other state officials.
Alabama state law includes an exemption for records "concerning security plans, procedures, assessments, measures, or systems." Vermont's open record laws do not cover records that "could reasonably be expected to endanger the life or physical safety of any individual."
Other states have adopted open records exemptions for material related to legal action involving a government entity.
In Texas, open record requests do not cover "certain information concerning criminal or civil litigation ... in which the governmental body is or may be a party, or to which an officer or employee of the state or a political subdivision, as a consequence of such employment, is or may be a party."
South Carolina state law includes an exemption for correspondence "or work product of legal counsel for a public body or other material subject to the attorney-client privilege."
OTHER ATTEMPTS
This is not the first time Sanders has sought to amend the Freedom of Information Act.
During the previous legislative session Sanders backed House Bill 1726, which also included a deliberative process exemption to exclude government records related to policymaking from disclosure. However, the bill died in committee after pushback from media members, bloggers and county officials who testified at the bill's hearing in March.
House Bill 1610, which would have amended the Freedom of Information Act to make it easier for local elected officials to meet outside of public meetings to discuss official business, died in a Senate committee.
House Majority Leader Marcus Richmond, R-Harvey, said there may be split feelings within the Republican House Caucus on amending the Freedom of Information Act.
"We haven't whipped it, but I hear considerable support for what the governor is trying to do, especially on the security [part]," Richmond said. "But there's going to be some people that will look at it and go, 'Man, I'm just going to get eaten alive in my district if I vote for this.'"
House Minority Leader Tippi McCullough, D-Little Rock, said she is concerned about what the proposed deliberative process exemptions would mean for state government.
"In general, we just also feel like there is no need for the special session," McCullough said. "That this is not emergency stuff. This is not things that have to be done right now.
"We could have taken some of this up maybe in fiscal [session] or the next regular session. So, it also seems like that there's no need for us to even be gathering for all of this right now."