After overwhelming pushback, Gov. Sarah Huckabee Sanders scaled down plans to amend the Arkansas Freedom of Information Act, instead asking the Legislature to limit public access to records about her security detail.
The change came at the bookend of the second day of a special session the Republican governor called, in part, to amend Arkansas' sunshine law. Earlier proposals to change Arkansas' open records and meeting law, considered one of the most transparent in the nation by press groups, would have limited communications between the governor's staff and cabinet secretaries, made it harder for those who file suit under it to recover legal fees and to prevent records "prepared by an attorney" representing a state official or agency that could be used in pending litigation.
Instead, the governor, along with 25 Republican senators who co-sponsored Senate Bill 10, have settled for exempting documents related to the governor's Arkansas State Police detail and "records that reflect the planning or provision of security services provided" to constitutional officers and judges.
"I've asked the Senate and House to file a bill limited to security -- the most critical and important aspect of FOIA reform," Sanders said in a statement. "Nobody said changing the status quo would be easy, but this is a great starting place for making our government safer and more effective."
Rep. David Ray, R-Maumelle, filed an identical companion bill, House Bill 1012. Both bills would be retroactive to June 1, 2022. The bills would require Arkansas State Police to submit a quarterly report to lawmakers detailing expenses related to the governor's protection detail.
Just hours before, Sanders was adamant about needing broad changes to the state's Freedom of Information Act, tweeting that activists could "file frivolous lawsuits to stifle our agenda and make taxpayers foot the bill." Sanders' campaign also lobbied in support of the bill, saying the state's sunshine law was hurting her agenda.
"We have an outdated law -- passed in 1967 -- that is crushing our ability to defend these laws and defeat the Radical Left," a text from the governor's campaign said. "Click here to contact your legislator and let them know we need to pass SB 9 to defend our conservative victories for Arkansas from Radical Left activists."
The proposal, which Sanders said would help ensure her safety and make government more efficient, has been met with bipartisan resistance as liberal groups and Republican party officials came together in opposition to the bill. Previous bills to amend the Freedom of Information Act had drawn strong rebuke from liberal and conservative advocacy groups, representatives from the media and residents who said the proposals would weaken government transparency.
While Senate President Bart Hester, R-Cave Springs, was confident he had a majority in the chamber to pass Sanders' proposal to overhaul the Freedom of Information Act, hours later Hester and the GOP Caucus announced, "We've heard the concerns from Arkansans and we understand the need to protect the governor, her family and the officers that protect her."
[DOCUMENT: Read House Bill 1010 » arkansasonline.com/913housebill1010/]
"We've worked through the legislative process and we have drafted a new bill... . The security of our governor and her family should be the top priority for us," Hester said. "Senate Bill 10 focuses on protecting the security details of our governor and her small children.
"We believe the other sections of this policy that we've been debating over the last few days should continue to be debated because it is very important," he said.
"We are asking the attorney general and his FOIA work group to immediately begin review and to forward recommendations to the Legislature off of Senate Bill 9," Hester said.
In a statement, Attorney General Tim Griffin, who formed a working group to examine changes to the Freedom of Information Act, said "I believe HB1012 and SB10, the new bills focused solely on safety and security, are eminently reasonable, and I support them."
"In any event, my FOIA advisory group continues to work, and we won't conclude our review until at least late 2024," he added.
Asked why the public should not have the right to know about individual trips by the governor and who is flying on the plane, Hester said "it is very appropriate that we do what we are doing to protect the governor and her family."
Hester said the Senate State Agencies and Governmental Affairs Committee will hold a public hearing on Senate Bill 10 this morning and he doesn't know whether an attempt by the Senate to extract the bill from the committee will be required.
"We have support from the House end and from the executive branch on this move," he said.
Hester said that "after continual feedback from our body, we reached out to the governor's office and said, 'We think this is what we can do right now in a three or four-day session.'
"None of us have been given the opportunity to do the rest of the things that we think need to happen," he said.
Hester said "we will always have the ability to audit from a legislative perspective every individual expense," under the bill. Asked why the Freedom of Information Act needs to be changed now, he said that "I think we have a different governor that has different circumstances.
"We haven't had a governor that had children since our governor was the child," Hester said, "so there are five people that we have to worry about right now.
"Things are just different. The world is a different place, and we think protecting our governor is of the upmost importance."
[DOCUMENT: Read House Bill 1011 » arkansasonline.com/913housebill1011/]
Hester said he hopes to wrap up the special session Thursday, the fourth day of the special session. As for the House, which has yet to take up any bills on the Freedom of Information Act during the special session, a spokeswoman for Speaker Matthew Shepherd, R-El Dorado, said in an email he supports the latest proposal.
On Monday, the first-day of the special session, the House stumbled out of the gate as a proposal to suspend the rules to speed up the parliamentary process failed on multiple voice votes.
Robert Steinbuch, author of legal treatise on the Arkansas Freedom of Information Act and staunch critic of the previous bills to amend it, said he supported the latest proposals.
"This was democracy at work, and we got a good outcome for everyone," said Steinbuch, a law professor at the University of Arkansas at Little Rock and a columnist for the Arkansas Democrat-Gazette.
"Our newspapers support reasonable safety provisions in the bill that will protect elected officials and their families," Eliza Hussman Gaines, publisher of the Arkansas Democrat-Gazette and president of the Arkansas Press Association, said in a statement. "I'm pleased that major changes have not been made to our strong FOIA."
Not everyone supported the new bill. Attorney and blogger Matthew Campbell, whose request to Arkansas State Police on how much it spent protecting Sanders, which sparked the debate over whether to disclose records on the governor's protection detail, said he was against the new bill.
Campbell also has requested records on state police expenditures when officers accompanied Sanders on a trade mission to Europe in June, including costs for plane tickets and hotel rooms for her protection detail. Campbell also wanted passenger lists of who flew with Sanders on an Arkansas State Police plane.
House Minority Leader Tippi McCullough of Little Rock said Tuesday night members of the House Democratic caucus were still reviewing the newly filed bill.
"It is better than what was out there, but could be pared down some more," McCullough said in an interview.
MARATHON HEARING
Evidence of bipartisan opposition to amending the Freedom of Information Act could be seen in Tuesday's 5-hour-long Senate Committee on State Agencies and Governmental Affairs meeting, where Arkansans from across the political spectrum spoke against the bill.
People packed the Old Supreme Court inside the State Capitol, almost all of whom voiced their opposition to a previous bill, a more expansive piece of legislation that would have exempted the proposed changes to the Freedom of Information Act.
Under the proposal, government officials tried to shield government "records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department" from disclosure.
Additionally, records "prepared by an attorney" representing a state official or agency that could be used in pending litigation or "anticipated in light of a plausible threat of litigation" could be withheld from the public, while also making it more difficult for those who file lawsuits under the Freedom of Information Act to recover legal fees.
"Information is the currency of our democracy," said Jennifer Lancaster, an attorney and president of Saline County Republican Women. "A well-informed public is the core of our democracy, and this bill does not bode well for our democracy."
Julie McDonald of Progressive Arkansas Women told the committee "there's no one in the electorate that wants less transparency and accountability from government."
"You've united that political spectrum against such a measure," McDonald said. "I did not know that there was something that could unite us that way anymore."
Jimmie Cavin, a self-described First Amendment advocate, got into a contentious back-and-forth with committee chair Blake Johnson. Cavin said Johnson was "being disrespectful" to others who testified against the bill. Johnson told Cavin to stop interrupting him. Johnson then excused Cavin, which led to a heated exchange where the Cavin said Johnson was "being a bully," which prompted the Republican senator to motion to police officers in the room to remove Cavin.
After public testimony the committee adjourned without a vote, a tacit admission that there was not enough support to pass the bill out of the committee. Instead, Hester said late Tuesday afternoon that the plan was to bypass the typical procedure and extract the bill from committee to bring it to the Senate floor, Hester said.
The only people who spoke in favor the bill were Inspector General Allison Bragg, Department of Finance and Administration Secretary Jim Hudson, Arkansas State Police Director Mike Hagar and Doug Elms, a security consultant who has contracted with the state.
Hagar said his agency needed to withhold certain records to protect patterns and practices of the governor's state police detail. Hagar took a shot at Campbell, whom he said was looking to embarrass the governor through his records request.
"It's been suggested that we are trying to hide something or that we're doing something different," Hagar said. "I just want to be clear on that we have never released any operational details at all -- ever, not one time -- in the state police that we are aware of," he said.
Campbell said he watched parts of the hearing from afar, specifically taking issue with Hagar's testimony directed at him. He said it was surreal that his records request prompted Sanders' proposal to change the state's sunshine law.
Like others, Campbell, a frequent critics of Sanders, noted the unlikely allies in the fight against the bills.
"In a weird way it kind of makes you feel good about the state," he said. "Just to know there are still some issues that when the government pushes too far the entire state is like 'Uh-uh, nope, does not matter what our political persuasion is. Not going to let that happen.'"
Information for this article was contributed by Will Langhorne of the Arkansas Democrat-Gazette.
CORRECTION: This story has been edited to clarify a quote from Sen. Bart Hester.