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Arkansas transparency group unveils new drafts for FOIA constitutional amendment, initiated act

Arkansas State Capitol
Jacob Kauffman
Little Rock Public Radio

From the Arkansas Advocate:

The government transparency group hoping to enshrine the Arkansas Freedom of Information Act in the state Constitution released a second draft of a proposed amendment with an accompanying citizen-initiated act Monday.

Arkansas Citizens for Transparency (ACT) unveiled its first draft of the proposed amendment last month, with the goal of qualifying for the 2024 statewide ballot. The nonpartisan group formed after Gov. Sarah Huckabee Sanders advocated for several exemptions to the FOIA and signed one into law after a special legislative session in September.

The seven members of ACT’s drafting committee realized they could better achieve their goals of creating enforceable government transparency policy by proposing an act as well as an amendment, they said in a statement Tuesday.

“First, some changes to the law belong in state code rather than in the state Constitution,” they wrote. “Second, referring to code sections in a proposed constitutional amendment threatened to place the entire measure into legal jeopardy, including the possibility of having it removed from the ballot.”

Additionally, the proposed act would create the Arkansas Government Transparency Commission to help citizens access public meetings and records and to enforce government compliance with transparency law.

“Ultimately, the chief goal of creating the commission is to provide a government transparency resource for citizens without having to resort to hiring a lawyer and filing a lawsuit,” the drafters wrote in the statement. “No aspect of this commission, however, would prevent a citizen from seeking relief in court, and all decisions of the commission would be appealable to a court.”

Overall, the proposed amendment and initiated act would specify government transparency as a constitutional right and require a vote of the people to enact any future changes to restrict government openness. The measures would also codify a definition of a public meeting, which has long been unclear, and broaden the legal definitions of a “governing body” and “communication” among members of a governing body.

The drafting committee received public feedback on the first draft of the proposed amendment and are seeking more feedback on the new proposals, they wrote in a statement. The response will inform the final drafts that the committee will send to Arkansas Attorney General Tim Griffin, who must approve the ballot title and popular name.

The drafters said Monday that they hope to submit the final drafts “soon” but did not specify when.

“We look forward to putting the right to government transparency in its rightful place, as part of the Arkansas state constitution,” the drafters wrote.

The proposed act and amendment would also:

  • 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 narrower FOIA exemption, replacing the one that became law in September, for records related to security services provided to the governor and other state officials.
  • Repeal Act 883 of 2023, which gave Arkansas school boards more reasons to go into executive session and allow more people to have closed-door meetings with school board members.

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, 2024, to qualify for the ballot. Proposed constitutional amendments require 90,704 signatures, and proposed statutes require 72,563.
The two proposed measures will be called the Arkansas Government Transparency Amendment and the Arkansas Government Transparency Act, and ACT will market them as a package and encourage people to vote for both.

Who drafted the proposed ballot measures?

Members of the Arkansas Citizens for Transparency drafting committee that worked on the proposed amendment and initiated act include:

  • Chairman Clarke Tucker, an attorney and Democratic state senator
  • Nate Bell, a former independent state representative
  • David Couch, an attorney known for work on ballot initiatives
  • Jen Standerfer, an attorney who previously worked on drafting legislation for the General Assembly and a former Democratic candidate for state House
  • Robert Steinbuch, a law professor and an author of thetreatise on the Arkansas FOIA and former Republican candidate for state House
  • John Tull, an attorney who has represented media outlets in First Amendment and public records cases
  • Ashley Wimberley, the executive director of the Arkansas Press Association
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.