The Arkansas Legislature is taking up a bill to change the state's Freedom of Information Act. Initially created in 1967, Arkansas FOIA laws are broad and allow for strong transparency across the state.
On Friday, Gov. Sarah Huckabee Sanders called a special session to, among other issues, alter the state's FOIA laws. The announcement came after attorney and blogger Matt Campbell sued the state police for access to her flight records. Campbell told Little Rock Public Radio he was curious to learn who she flew with.
“FOIA is about the only way you can force [the government] to tell you what they are doing,” he said.
Sanders doesn't feel this information is relevant to the public. At a press conference announcing the special session, the governor did not name Campbell specifically, but said “some people are weaponizing FOIA.”
Sanders says, since her time as White House Press Secretary for former President Donald Trump, she's suffered many “credible death threats.” She says as a mother of three young children this could put their safety at risk.
“If they know you travel with two people versus four people or six people, and you take this route versus this one, or you fly specifically on this airline versus this one, you're putting that person in vulnerability," she said.
Campbell didn't agree with the governor's argument.
“I don’t have a time machine, nobody is going to go back and catch these flights in action," he said. "I don't know how knowing who was on a plane in the past would put anyone in danger."
Senate Bill 9 would prevent the public from having access to her security information, but it goes farther in other ways. The bill shields the public from seeing "records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department." If the bill becomes law, it will expand legal privilege exceptions to FOIA, and make it difficult for those filing FOIA lawsuits to recoup legal fees.
An earlier, similar bill went further, shielding the public from seeing internal agency communications, and communications within the executive branch.
The effort has struggled in the legislature. Lawmakers met behind closed doors with the governor several times Monday, after it became apparent there weren’t enough votes to pass the earlier bill in its current form.
Initially, a committee planned to meet Monday night after Senate President Pro Tempore Bart Hester, R-Cave Springs, admitted in an interaction with Sen. Stephanie Flowers, D-Little Rock, that the bill hadn’t been written yet. Public commenters gathered in the committee room to speak on the bill at 6 p.m., but around an hour later were told the meeting would not happen.
The bill was eventually filed just before 10 o'clock Monday night.
The next day, the legislature held a day-long committee meeting with mostly negative public comments, after which no vote was held, and a few members of the committee were missing.
In committee, Hester said the bill would protect the governor and create efficiency. He admitted that he preferred an earlier draft of the bill that applied to state employees more broadly, but he “lost the argument with his colleagues.” He said he spent Monday fixing the bill after hearing public feedback.
“The nature and volatility in politics is more than it probably ever has been,” Hester said. “Our governor uniquely has been a target.”
Hester said the current FOIA lawsuit system is open for abuse, but could not name of a time when someone had successfully abused FOIA. He sparred with Sen. Clarke Tucker, D-Little Rock, who felt the law was unnecessary.
“We’re changing laws based on unsuccessful attempts to abuse the FOIA system,” Tucker said, adding he didn't understand why this was brought up in a special session which is typically reserved for emergencies.
Tucker had other problems with the legislation. The new law would bar communications between the governor and her staff but also communications that “reflect” these correspondences. Tucker said the word “reflect” could be defined broadly by courts.
“Any exception to FOIA needs to be narrowly tailored,” he said.
Tucker then asked if Hester was willing to use clean-up language. Hester responded that he felt the bill was clearly worded and that any judge would understand its intent.
During public comment, Republican attorney Jennifer Lancaster spoke against the bill. She said she supported shielding information about the governor’s security, but said other parts of the bill were too wide-sweeping.
“In direct contradiction to our Republican Party principals and platforms, [you] are taking away our access to information about what is happening in the government that we fund,” she said. “This bill is not just an assault on transparency or accountability, it’s an assault on our republic.”
Arkansas Inspector General Allison Bragg said she supported the bill, but only addressed the parts about security.
“So maybe there is nothing necessary problematic about releasing a list of passengers on an airplane,” she said. “But what problem that creates is a precedent.”
The committee ultimately adjourned with no vote, though SB9 could still be heard by the full Senate without passing through the committee process.
On Tuesday, Rep. Julie Mayberry, R-Hensley, put forth a separate bill that would only exempt the governor’s security information from FOIA.
