Arkansas Attorney General Tim Griffin on Monday certified the ballot wording for a proposed initiated act aimed at strengthening the state's Freedom of Information Act.
The certification allows supporters of the proposal to begin their petition campaign, which will require 72,563 signatures to be turned into the secretary of state's office by July 5 in order for the proposed initiated act to make the November ballot. A law passed in 2023 requires the signatures to be collected from at least 50 counties in the state.
The popular name for the proposal is the Arkansas Government Disclosure Act of 2024.
The proposed initiated act -- a citizen-driven law passed through a statewide referendum -- would amend the Arkansas Freedom of Information Act aimed at making government more transparent. The proposal calls for the creation of a state commission to assist citizens with their records requests and give courts the authority to issue civil penalties against government bodies that don't comply with a records request.
The initiated act also would establish a long-sought definition for a public meeting as "a communication between two or more members of a governing body for the purpose of exercising a responsibility, authority, power, or duty of the governing body concerning official action." The definition would include discussions between a government employee and one or more elected officials for purposes "to poll the votes."
If approved, the proposal also would:
— Repeal a state law that allows school boards to meet in executive sessions to discuss legal matters.
— Allow government bodies to meet in closed session to discuss how to respond to a cybersecurity incident.
— Allow litigants to recoup legal fees if a court finds they "substantially prevailed" in their lawsuit.
— Clarify that government bodies must disclose public records within three working days upon request or explain the reason for nondisclosure.
— Require the disclosure of records pertaining to "planning or provision of security services" for constitutional officers, the governor's mansion and state Capitol that are more than three months old unless the Arkansas Transparency Commission "finds that confidentiality is essential to the ongoing security service."
The initiated act is part of a two-pronged approached by Arkansas Citizens for Transparency to stymie attempts by lawmakers to change the state's open records and meetings law.
Along with the initiated act, Griffin also approved ballot wording for a proposed constitutional amendment last week that would create a right to government transparency and make it more difficult for the General Assembly to change the Freedom of Information Act, requiring a two-thirds majority in the Legislature that would only take effect after approval by the 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 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.
The attorney general's certification Monday is the end of a weeks-long back-and-forth process for Arkansas Citizens for Transparency to gain approval for both of their measures.
Citizen led ballot initiatives, whether a constitutional amendment or act, require a brief summary of what their proposal would do if approved, called a "ballot title." Under an Arkansas law passed in 2023, the attorney general is ultimately responsible for approving a petition's ballot title and popular name before the signature collection effort can begin.
"I know that we are powering forward on these two initiatives because, you know, we've wasted too much time getting the ballot titles approved and we need to start collecting signatures," said David Couch, treasurer of Arkansas Citizens for Transparency said.
While the Attorney General's office signed off on the wording for the ballot measure, it gave the group a "cautionary note," warning the ballot language could be subject to a future legal challenge given its complexity and length.
"You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot-title challenge," according to the attorney general's opinion. "Any ambiguity in the text of a measure could lead to a successful court challenge."
Griffin's office had rejected previous iterations of the amendment and initiated act, citing faults in the ballot title, frustrating members of Arkansas Citizens for Transparency. Writing on behalf of Griffin, Deputy Attorney General Ryan Owsley found multiple faults with previous versions with the proposed ballot language for both the initiated act and constitutional amendment.
Those rejections led to Arkansas Citizens for Transparency to a file a lawsuit against the attorney general, asking the the Arkansas Supreme Court to force Griffin to certify their constitutional amendment or write a valid ballot title.
The ballot campaign to enshrine further protections for the state's Freedom of Information Act began after Gov. Sarah Huckabee Sanders called a special legislative session in September, in part to amend Arkansas' sunshine law. Sanders said the Freedom of Information Act, passed in 1967, was in need of an update.
The Republican governor argued the law needed to better take in her security concerns, which were more sensitive than her predecessor given the increased number of threats she has received because of her national name recognition.
Sanders also said the law needed a "deliberative process" exemption that would have prevented 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 with widespread pushback to the proposed changes to the Freedom of Information Act, including from Republican and conservative groups, Sanders and the General Assembly backed off and instead agreed upon a scaled down bill.
Act 7, which lawmakers passed in September, mostly deals with "records that reflect the planning or provision of security services provided" to the state's constitutional officers and Court of Appeals and Supreme Court judges and justices.