Bart Hester

Republican state lawmakers pushing Gov. Sarah Sanders’ plan to curtail the Arkansas Freedom of Information Act filed a new bill late Monday night after an earlier version floundered in both the House and the Senate on the first day of an unexpectedly contentious special legislative session.

Senate President Pro Tem Bart Hester (R-Cave Springs) and Rep. David Ray (R-Maumelle) filed identical versions of the legislation Monday. The new bill removes the most controversial part of the previous bill — a blanket FOIA exemption on “records revealing the deliberative process” of state agencies, which could have effectively gutted the state’s transparency law.

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In its place is a new exemption: “Records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department.”

The communications of the governor’s office are already exempt under the existing FOIA, much to the occasional frustration of journalists and others. This bill would broaden that exemption, shielding from public view any emails and other communication between the governor’s office and, say, Education Secretary Jacob Oliva or Department of Human Services Secretary Kristi Putnam.

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Like the earlier version, the new bill would also exempt from the FOIA records related to security services provided to the governor and other state officials — the issue that led Sanders to pick this fight to begin with. The new bill departs from the earlier version in a few other key ways, including a clearer definition of a new exemption for records related to pending litigation. The first bill would have made the new exemptions retroactive to January 2022; the new bill changes that to June 2022.

The Senate version, Senate Bill 9, is expected to go before the State Agencies committee at 11 a.m. Tuesday.* But the bill may still have a difficult time passing out of committee, given the likely opposition of Democrats and at least one Republican member, Sen. Bryan King of Green Forest, and the absence of another senator on the eight-person committee.

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If Hester can’t get the bill out of committee, state Sen. Clarke Tucker (D-Little Rock), a member of the committee, said Hester would likely “extract” the bill and put it before the Senate for a full vote. Though it can be done with a vote of only 18 senators (out of 35 total), extraction is exceedingly rare, Tucker said, because it circumvents the normal order of the legislature.

It’s “the nuclear option,” he said. “You’re eradicating the committee process.”

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Still, Hester and other Republicans appear determined to plow ahead, despite public outrage and surprisingly strong opposition from legislators of both parties on weakening the state’s FOIA. On the other side of the Capitol, the House has twice balked at suspending normal rules of procedure, which is typically a feature of the tightly compressed timetable of special sessions. This session was expected to last three days, but that schedule now seems unrealistic, if not impossible.

Senate Republicans spent much of the day huddled behind closed doors trying to work out their disagreements, at times with the governor or her staff present. Hester told the Senate this afternoon that the FOIA bill was being reworked; he expected to assign it to the State Agencies committee and hold a hearing this evening. But around 7:30 tonight, the new bill had yet to be filed and Hester called off the hearing. 

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He then spoke to a crowd of unhappy citizens — most of whom oppose the FOIA bill — growing clearly frustrated with their pointed questions about transparency and process:

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The members of the public turning out to resist lawmakers’ efforts to undermine the FOIA are a mix of progressives and conservatives who’ve found spontaneous common cause in protecting transparency. The Arkansas Times’ Austin Bailey, who was at the Capitol today, described the scene in the Senate gallery this way:

Gun rights activist and law Professor Rob Steinbuch, gadfly Jimmie Cavin, some clean-cut Americans for Prosperity and the pretty Conduit News anchors mixed with rumpled Democrats and pink-haired reproductive rights goddess types. New friendships were forged, phone numbers were exchanged, plots were hatched.

FOIA advocates of all ideological persuasions will still dislike this new bill, though it may be less terrible than the first go-around. Any new exemption to the FOIA is an opportunity for state agencies, universities, police departments, cities and every other public entity to find creative reasons to deny the public access to records. And it’s still unclear why these proposed changes constituted an emergency that required a special session to “fix.”

Meanwhile, the other major item of business this special session — income tax cuts for the highest earners and corporations — continues to hum along in the background. A Senate committee passed a bill Monday afternoon that would cut the state’s top personal income tax rate from 4.7% to 4.4% and the top corporate rate from 5.3% to 5.1%. It now goes to the full Senate for a vote, where it’s expected to pass easily.

*An earlier version of this story said Senate State Agencies was expected to meet at 8 a.m. on Tuesday; that meeting is now scheduled for 11 a.m.

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