Gov. Sarah Huckabee Sanders and her supporters in the Arkansas Legislature aim to gut a longstanding law that shines light on the workings and expenditures of state government.
A bill lawmakers will take up during a special session next week would hide all information about where the governor travels on the state dime and with whom, retroactively to before she took office. The proposal comes the same week a lawsuit was filed over the Arkansas State Police’s ongoing refusal to share the names of the governor’s travel companions and some of her travel expenses.
But this wholesale rework of the state’s longstanding Freedom of Information Act extends far beyond the governor’s trips and expenses. It would let state government officials operate largely in secret. Should it pass next week, the law will hide from journalists and citizens any communications or documents about proposed policy changes, leaving us no way to know what a state agency is about to do until they do it and decide to tell us about it.
The spoonful of sugar to help the authoritarianism go down is a tax cut to 4.4% for individuals and 4.8% for corporations, a move that will save lots of cash for Arkansas’s highest earners. Middle and lower-class folks get a one-time check for $150.
The governor said at a Friday press conference that she expects the special session to end Wednesday, meaning there’s likely to be little time for legislators to debate the government secrecy bill or hear public comment on it.
This rollback of Arkansas’s Freedom of Information Act is sponsored by Rep. David Ray, a Maumelle Republican who parroted Sanders’ indignant talking point that any data about her travel, even trips taken months ago, could put her and her children in the crosshairs by revealing “sources, methods and patterns.”
Sanders told reporters Friday that she’s been getting death threats since her days as Donald Trump’s press secretary, and that more recently a man in Oklahoma and another in Arkansas threatened her life. But shielding travel expenses and other information isn’t just for her own benefit, Sanders said.
“It’s about protecting the vulnerabilities within our walls, stopping the weaponizing and harrassment that, frankly, is what FOIA is being used for in some cases right now,” she said.
Ray said other proposed changes to Arkansas public information law contained in his bill will help the state win in court. By exempting communications that might become part of a lawsuit, the state can shield its legal strategy from attorneys on the other side.
Ray cited the SAFE Act, Arkansas’s ban on gender-affirming care for transgender youth that’s been ruled unconstitutional by a federal judge, and Arkansas LEARNS, the school privatization and voucher bill, as examples of topics for which internal conversations would be blocked from public access. Withholding such information “will enable our state to continue moving forward, continue adopting bold conservative policies and allow some level of deliberative process for pre-decisional measures such as that.”
Rumors about this evisceration of a 56-year-old law that’s served Arkansans well have been circulating for weeks, raising hackles from both the left and right ends of the political spectrum.
Rob Steinbuch, a conservative Republican and professor at UA Little Rock’s Bowen School of Law, is no fan of the proposal.
“There are four components of this bill, and half of one makes sense,” Steinbuch said. He supports the governor being able to shield information about current and future travel. But past travel? The draft bill to be voted on next week would be retroactive to January of 2022, a full year before Sanders took office.
“I can’t see a legitimate basis for excluding information after the fact,” he said.
Steinbuch pointed to Sanders’ pledge to provide a quarterly aggregate report of her security expenses to a committee of lawmakers — but not to the public. If you can disclose information to legislators, you can disclose it to the people picking up the tab, he said. “It’s fine for her to spend however much she needs to. That doesn’t mean the public isn’t entitled to know what that number is. That’s the cost of doing business as a public figure.”
But the governor’s secret travels aren’t really what Steinbuch is worried about.
“Frankly, I think that a lot of folks are focusing on that as a smokescreen for the remainder of the law,” he said.
Revoking journalists’ and citizens’ rights to see how the governmental sausage gets made will surely save time and money. The state will no longer have to hire people or buy software to process all those FOIA requests and answer questions. So sure, there’s some efficiency to be gained there, Steinbuch agreed. But it’s not worth it.
“Totalitarian governments are highly efficient. They’re just not democratic. Democracy actually has a cost. The key cost for democracy is transparency,” he said.
Journalists’ ability to uncover fraud and other problems inside government agencies will vanish. Public oversight will no longer be possible, he said.
The attorney/client provision of the proposed bill, which allows the withholding from the public any government document an attorney touches, is also a recipe for trouble, he said.
“I call this the child molester protection act,” he said, pointing to accusations of child sexual assault by Penn State Coach Jerry Sandusky that stayed secret for years.
“A whole host of records were withheld from the public for years under exactly this exemption,” Steinbuch said.
Attorney Matt Campbell, aka the blogger Blue Hog, doesn’t necessarily align politically with Steinbuch, but both men are fighting on the same side for access to information.
A series of only partially answered FOIA requests Campbell sent since June seeking information on the governor’s travels and travel companions prompted him to file the lawsuit earlier this week.
Despite the talking points from the governor’s office, the draft bill lawmakers will take up next week has nothing to do with protecting the governor’s safety, Campbell said. As proof, Campbell noted that Arkansas State Police have already provided plenty of the requested travel details, but continue to withhold only specific things.
“This is one hundred percent about keeping the public from knowing the only information that ASP has not provided: the identity of the other people who flew with the governor and the costs incurred by ASP when the governor demanded five troopers to travel with her to Europe, rather than the usual two troopers on an international trip,” Campbell said.
The bill on the table goes far beyond the governor’s office, and will let state government agencies withhold pretty much any information they want, he said. “The legislation creates two massive holes — records related to deliberation and records deemed safety-related — that can and will be used to hide pretty much anything someone might not want to release to the public.”
Attorneys will no longer take on lawsuits over Freedom of Information violations since the state will no longer on the hook to pay them when they win, Campbell said. He urged lawmakers to reject the bill.
“The only ‘safety’ issue here is that the governor wants to feel safe and secure in her ability to spend taxpayer funds without oversight and use the ASP plane without anyone knowing why. Any legislator who supports such a self-serving, dishonest attempt to deceive Arkansans does not deserve to be in office,” Campbell said.
Bill Kopsky, executive director of the Arkansas Public Policy Panel, predicts a monumental rollback of FOIA will create a breeding ground for corruption.
“It will lead to greater fraud and abuse of office. It will lead to more secret deals developed in back rooms and sprung on the public at the last minute when it’s too late for the public to have meaningful input,” Kopsky said.
The special session considering this bill and the proposed tax cuts is set to begin Monday at 11 a.m. at the state Capitol.