Wording of proposal to strengthen Arkansas Freedom of Information Act rejected for 3rd time

Attorney General Tim Griffin addresses the media during a news conference in Little Rock in this March 16, 2023 file photo. (Arkansas Democrat-Gazette/Stephen Swofford)
Attorney General Tim Griffin addresses the media during a news conference in Little Rock in this March 16, 2023 file photo. (Arkansas Democrat-Gazette/Stephen Swofford)

Arkansas Attorney General Tim Griffin on Thursday again rejected wording for a proposed initiated act that aims to strengthen the state’s Freedom of Information Act.

The attorney general’s certification is required before the signature collecting effort for a ballot measure can begin. Thursday’s decision marked the third time Griffin’s office has rejected wording for the proposal, saying the latest version contains language that is “misleading.”

Arkansas Citizens for Transparency proposed the initiated act, along with a constitutional amendment, as a way to safeguard the state’s open records and meeting law.

The initiated act would create a state commission to assist citizens with their records requests, set a long-sought definition for a public meeting, and gives courts the authority to issue civil penalties against government bodies that don’t comply with a records request.

Citizen-initiated laws, whether constitutional amendments or acts, require a brief summary of what their proposal would do if approved, called a “ballot title.”

Part of the ballot title for the proposal says “To Repeal Any Law Enacted by the General Assembly After January 1, 2024,” something Griffin argued is in conflict with Amendment 7 to the Arkansas Constitution, as it is asking voters to consider a measure that would undo laws that have not yet passed.

“But nothing in Amendment 7 allows the circulation of petitions asking citizens to support the repeal of a law that does not yet exist,” according to the attorney general’s opinion. “Because such a ‘preemptive repeal’ falls outside the scope of initiatives under Amendment 7, it is misleading to suggest to voters that an initiative could accomplish that goal.”

Griffin also said the preemptive repeal of the future laws would mislead voters as it does not include an explanation of the “potential consequences” of doing so.

“If the “preemptive repeal” language were allowed, voters could unknowingly vote to repeal a law they support or vote not to repeal a law they oppose,” according to Griffin’s opinion.

David Couch, treasurer of Arkansas Citizens for Transparency, said that language was included in the ballot title as a way to preempt the governor in case she called a special session to amend the Freedom of Information Act before the November election. Couch said the group will follow Griffin’s advice and delete the “preemptive repeal” clause from the ballot title.

“It’s not worth arguing over,” Couch said.

For his part, Griffin told Couch in a letter addressed to him that the “misleading” language was “the only remaining issue standing in the way of certification,” and “If you resolve this issue and resubmit with no other changes, I will expedite the response.”

To make the November ballot, Arkansas Citizens for Transparency would need to collect at least 72,563 signatures by July 5.

“The citizens of Arkansas have had an exciting week with the certification of the ballot title for our constitutional amendment, and Arkansas Citizens for Transparency is pleased with yesterday's step forward toward guaranteeing a right to government transparency for all Arkansans,” Arkansas Citizens for Transparency said in a state released Thursday night.

“Late this afternoon we again received another rejection of our initiated act submission from Attorney General Griffin,” the statement continued. “The objection was to language that has existed since our first submission, but was raised for the first time today. We immediately addressed this limited objection by deletion of the language that caused his concern, and submitted our eleventh ballot title option for the initiated act shortly after close of business this evening. The submission added no new language and changed no policy.

“We appreciate the Attorney General's commitment to 'expedite' his response to this latest draft, and in good faith we have decided to delay any new legal action for an additional two working days.”

On Wednesday, the attorney general’s office certified ballot language for the group’s constitutional amendment that would establish government transparency as a right for Arkansas citizens and make it more difficult for the Legislature to change the Freedom of Information Act.

The rejection of Arkansas Citizens for Transparency’s initiated act and the certification of its constitutional amendment leaves the group in a tricky strategic situation as it has an ongoing lawsuit against the attorney general.

The lawsuit, filed Tuesday, asks the Arkansas Supreme Court to make Griffin sign off on their constitutional amendment. While Griffin’s office certified ballot wording for the proposed amendment, it did so only after forcing the group to make changes, something Arkansas Citizens for Transparency agreed to do reluctantly.

The dual amendment and initiated act strategy is part of a campaign which begun in reaction to the legislature’s attempt to overhaul the Freedom of Information act during a special session in September.

Republican Gov. Sarah Huckabee Sanders said the state’s Freedom of Information Act, passed in 1967, was in need of an update to take her security concerns into account and to make government more efficient.

Sanders and lawmakers had originally proposed a bill that included a “deliberative process” exemption to the sunshine line that would have shielded records “that comprise part of the process by which governmental decisions and policies are formulated” from disclosure. Another version of the bill would have exempted communications between the governor and her staff and cabinet secretaries from records requests.

But the governor and her legislative allies were met with widespread pushback, including from conservatives and county-level Republican party groups who view the state’s sunshine law as a tool for government accountability.

Sanders and the legislature relented to bipartisan pressure and instead agreed to a scaled-down law that exempts “records that reflect the planning or provision of security services provided” to the state’s constitutional officers.

The proposed initiated act also would:

* Repeal a state law which allows school boards to meet in executive sessions to discuss legal matters.

* Define key terms related to public meetings and disclosure such as “cybersecurity,” “government transparency,” “minority party” and “public notice.”

* Allow litigants to recoup legal fees if a court finds they “substantially prevailed” in their lawsuit.

* Clarify that public records must be disclosed within three days upon request or explain the reason for nondisclosure.

If approved, the constitutional amendment would require a two-thirds majority in both chambers of the General Assembly to amend the Freedom of Information Act, which would not take effect until after final approval from voters through a statewide referendum. Immediate changes to the Freedom of Information Act would require a nine-tenths vote in the General Assembly that could be overturned by a statewide referendum under the amendment.

The amendment also would take away the state’s sovereign immunity in cases concerning government transparency. To make the November ballot, Arkansas Citizens for Transparency would have to collect at least 90,704 signatures by July 5.

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