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Transparency advocates hear public input on proposal to enshrine FOIA in Arkansas Constitution

Several drafters of a proposed constitutional amendment to enshrine the Arkansas Freedom of Information Act in the state Constitution participated in a public forum in Little Rock on Thursday, Nov. 2, 2023. From left: attorney David Couch, Arkansas Press Association Executive Director Ashley Wimberley, Democratic state Sen. Clarke Tucker, attorney Jen Standerfer and former independent state representative Nate Bell.
Tess Vrbin
Arkansas Advocate
Several drafters of a proposed constitutional amendment to enshrine the Arkansas Freedom of Information Act in the state Constitution participated in a public forum in Little Rock on Thursday, Nov. 2, 2023. From left: attorney David Couch, Arkansas Press Association Executive Director Ashley Wimberley, Democratic state Sen. Clarke Tucker, attorney Jen Standerfer and former independent state representative Nate Bell.

From the Arkansas Advocate:

Members of a government transparency group answered questions from a small crowd in Little Rock on Thursday about their effort to bolster the state’s public records and open meetings law that they hope will appear on the 2024 Arkansas ballot.

Last month, Arkansas Citizens for Transparency (ACT) unveiled a proposed constitutional amendment that would enshrine the Arkansas Freedom of Information Act in the state Constitution. ACT members said they will create and make public at least one more draft before submitting it to Arkansas Attorney General Tim Griffin, who must approve the ballot title and popular name.

The proposed amendment would specify government transparency as a constitutional right. It would also require a vote of the people to enact any future changes to restrict government openness — a direct response to September’s special legislative session that proposed several exemptions to the FOIA, one of which became law.

Six of the seven members of ACT’s drafting committee discussed what they’ve put forth in the existing draft and what they believe they need to add or change in order to achieve their goal of making government meetings and documents as accessible to the general public as possible.

“We’re doing it differently than I’ve ever seen it done before,” committee member and former Bureau of Legislative Research employee Jen Standerfer said. “Not in my lifetime have I seen a drafting committee come to the people and say, ‘We don’t know what our final draft is going to look like yet because it depends on what you, the people of Arkansas, want to happen’… This is how transparency should be done.”

The proposed amendment would also:

  • Codify a definition of a public meeting, which has long been unclear and frustrating for transparency advocates and government officials alike.
  • Broaden the legal definition of “governing body.”
  • Broaden the legal definition of “communication” among members of a governing body.
  • Stiffen penalties for violating the FOIA.
  • Protect aggrieved citizens’ right to appeal FOIA decisions to circuit court and, if successful, collect attorneys’ fees.
  • Substitute a new exemption, replacing the one that became law in September, for records related to security services provided to the governor and other state officials.

Making these things a constitutional right “opens a whole different set of litigation” that citizens can use to access public records and government business, said Nate Bell, a former independent state legislator and a drafter of the proposed amendment.
In addition to the amendment, ACT plans to propose a citizen-initiated change to state law so that the proposed FOIA changes are explained in detail in state statute, as well as declared in principle by amending the Constitution, Standerfer said.

The statutory details will “really make sure that the courts interpret this in a way that bends toward the people,” she said.

If Griffin approves ACT’s two proposals, canvassers must gather a certain amount of signatures for each one from registered voters throughout the state before July 5 to qualify for the ballot. Proposed constitutional amendments require 90,704 signatures, and proposed statutes require 72,563.

Bell said ACT plans to enlist volunteers to collect signatures and hire paid county coordinators if the measures reach that stage in the process. The group has not yet started fundraising.

The two proposed measures will be called the Arkansas Government Transparency Amendment and the Arkansas Government Transparency Act, and the drafters will market them as a package and encourage people to vote for both, Bell said.

Security records

The FOIA exemption that Gov. Sarah Huckabee Sanders signed into law in September shields from public access all records and communications concerning the planning or provision of security services to the governor and other state elected officials. Act 7 of 2023 received support from state Sen. Clarke Tucker, D-Little Rock, a member of the ACT drafting committee.

The Arkansas Press Association also supported the new law; its executive director Ashley Wimberley is also a member of the ACT drafting committee.

ACT’s first draft of the proposed constitutional amendment mirrors Act 7’s language pertaining to security but adds that these records should be considered public and accessible via FOIA after three months.

In order not to provide these records to someone upon request, the custodian of the records would have to “prove that confidentiality of the record is essential to the ongoing security” of a state elected official, the draft amendment states. A circuit court would then decide if the record should be shielded for no longer than two years or if the custodian knowingly violated the law and must pay a civil penalty, according to the draft.

“What we’re doing is creating a process whereby no record in perpetuity is not available to the public,” Bell said. “There has to be a constant reassertion of the reasons why that record is not available to the public, and the presumption is that it shouldn’t be.”

Some political figures and transparency advocates said in September that they believed Act 7 was too broad and included not just security information but also details about the use of public money. Sanders called the special legislative session after blogger and attorney Matt Campbell of the Blue Hog Report reported on her use of state-funded aircraft using documents he received via FOIA.

Former Democratic U.S. Rep. Vic Snyder, who represented much of Central Arkansas from 1997 to 2011, said the proposed amendment should be more specific about which state agencies’ security records should have limits on their accessibility so that officials do not use “security” as an excuse.

Public meetings and government interests

The proposed amendment would define a public meeting as “a meeting at which two (2) or more voting or nonvoting members of a governing body communicate for the purpose of exercising the responsibilities, authority, power, or duties delegated to the governing body on any matter on which official action will foreseeably be taken by the governing body.”

It would also define “communication” between officials to mean “without limitation a communication made in person, by telephone, electronically, or by other means.”

These specific definitions would prevent elected officials from conducting business, such as soliciting support for measures expected to come before a governing body, without the discussions being documented and publicly available, Standerfer said. She added in response to audience questions that the draft language should be clearer in this regard.

“One of the things that we have been working very hard on, and continue to work very hard on, is making sure that we allow cities and counties and school boards and all the other commissions to continue to do their jobs, but also prevent them from using doing their jobs as a way to get around FOIA,” Standerfer said.

State Rep. Ashley Hudson, D-Little Rock, asked who would be “the grownup in the room” responsible for determining whether a proposed change to the FOIA by the Legislature restricts public access to information and would therefore be put to a statewide vote.

Standerfer said a future draft would be more specific about this distinction.

“It’s incumbent upon the General Assembly to read the rules we give to them, and it’s incumbent upon us to make it as clear for them as possible,” she said.

Aaron Sadler, communications director for the city of Little Rock, asked the drafting committee if they had considered seeking input from the Arkansas Municipal League, the Association of Arkansas Counties and other statewide lobbying organizations for local elected bodies.

Committee members said they have received feedback on the draft from government officials without soliciting it and are always open to receiving more. Bell said the group does not plan to actively “consult the gatekeepers” of information about government business.

Andrew Bagley, publisher of the Helena World newspaper and a former Phillips County Quorum Court member, said he disagreed with Sadler’s idea.

“We don’t bring the fox into the henhouse so they can plan, based on what your strategy sessions are, to torpedo it,” Bagley said.

Tess Vrbin is a reporter with the nonprofit, nonpartisan news organization Arkansas Advocate. It is part of the States Newsroom which is supported by grants and a coalition of readers and donors.