A citizen group filed suit Tuesday against Arkansas Attorney General Tim Griffin in the state Supreme Court.
Arkansas Citizens for Transparency (ACT) has spent months trying to enshrine the Freedom of Information Act in the state constitution. They hope to get a constitutional amendment put on the ballot in 2024 called the “The Arkansas Government Transparency Act.”
Getting an amendment on the ballot is a lengthy process which is rarely successful. First, Griffin must approve the amendment's title and description. Then, ACT can begin collecting the over 90,000 needed signatures from across the state to put the amendment on the ballot.
ACT is still on the first step, having tried three times now to get the ballot title approved. An opinion on the third attempt is expected to be released Tuesday.
ACT is led by attorneys Nate Bell and David Couch. The two men are on opposite sides of the political aisle, but both strongly believe in the Freedom of Information Act.
Arkansas has some of the strongest FOIA laws in the country. They were championed by Gov. Winthrop Rockefeller in 1967 and have changed little in the years since. It allows regular citizens to gain access to records and correspondences for most taxpayer-funded agencies and positions.
Last year, Gov. Sarah Huckabee Sanders called a special session to radically alter the state's FOIA laws. The bill initially put forward would have significantly changed FOIA. After large public backlash from Democrats and Republicans, lawmakers were only able to pass a watered-downversion of the initial bill. The final bill mostly restricted the governor's travel information from the public.
Bell and Couch teamed up after the special session to put forth a proposal bringing FOIA back to its original state and enshrining it permanently in the state constitution. The constitution also gives citizens the right to propose ballot amendments. Bell and Couch say this right is being violated by making it too difficult to make it through the first step of the approval process, as Griffin routinely rejects ballot titles.
The lawsuit is asking for a mandatory injunction against the attorney general.
The lawsuit says this would compel “the attorney general to either approve and certify the ballot titles submitted by the Petitioner or to substitute and certify a more suitable and correct ballot titles within three days.” This three-day window would replace the current ten-day window Griffin has to rule on a ballot title.
“The right to the initiative process belongs to the people and not the attorney general,” the suit says.
Bell expressed his frustration on X, the social media site formerly known as Twitter.
“At this point, we had no choice but to seek court intervention,” he said.
The first time the amendment was rejected was in October. The rejection opinion said the draft had vague language. For example, the draft said the proposal used terms like “government transparency” without defining their meanings. The opinion went on to say that it could unintentionally create a new constitutional right.
ACT said this response left them “greatly perplexed.”
A second rejection on January 9 listed only two reasons for the rejection. The opinion said the ballot could conflict with Supreme Court precedent involving privacy rulings and lack of clarity on how disciplinary records would be treated under the amendment.
“None of the attorney general’s opinions state that the ballot title or the issue is misleading or designed in an improper manner,” the lawsuit said, implying that Griffin's reasoning has been unfair to them.
Griffin is adamant that his choice to accept or reject the ballot titles has nothing to do with his personal feelings and everything to do with the legality of the title.
“I’m the very last one to see it,” he told host Roby Brock on the program Capitol View. “The opinions division receives it, they write the opinion on it, it goes through review at the general counsel's office.” Griffin insists he has never changed an opinion written by his staff.
If the amendment were to be approved by voters and then challenged in court, his office would be responsible for the legal fight to uphold it. Griffin says it's his job to make sure the law could stand up in court.
“There’s no question the process works,” he said.
When asked by Brock why one office gets to make the decisions over ballot titles, Griffin said his office was the “appropriate office” to make that call.
The third ruling is expected on the ACT proposal by the end of the day on Tuesday.
In response to the suit, Griffin said in a statement, "I am confident in our review and analysis of ballot submissions and look forward to the Arkansas Supreme Court's review in this case."
