A group of Arkansas Republican lawmakers is taking a shot at limiting access to public records by clouding the state’s Sunshine Laws, aka the Arkansas Freedom of Information Act.
What’s the big deal?
Having access to public records — things like emails to and from state agency directors, reports produced for special projects, travel records for top officials — is pivotal for government transparency. Arkansas’s law was enacted in 1967, and it is currently considered one of the most comprehensive and strongest of its kind in the country. In addition to obtaining physical copies of records, it allows residents to join public meetings and be alerted when multiple elected officials are gathering.
For journalists, the Arkansas Freedom of Information Act is critical to the role of being a watchdog. Groundbreaking stories frequently hinge on public records. Without them, reporters would struggle to inform the masses on what the authorities are up to — often how they’re spending tax dollars.
Gov. Sarah Sanders announced Friday a special session at the Arkansas Capitol would start Sept. 11. The Arkansas Freedom of Information Act is on the chopping block.
So a special session's coming Monday. It'll (very likely) move super quick, meaning by midday Wednesday—maybe even before many Arkansans even know their lawmakers are at the Capitol—there could be big changes to our state's Freedom of Information Act.
Not great.#ARpx
— Greg Leding (@GregLeding) September 8, 2023
The governor’s travels
Talk Business and Politics got the early scoop about a proposed bill to weaken access to public records. A draft bill from Rep. David Ray (R-Maumelle) would bar the public from gaining access about the security of the executive branch, including communications, procedures and travel plans, retroactive to January 2022. It would also disallow requests for any state agency record in which internal deliberations or discussions are still underway, and change the process for how attorney fees are awarded in FOIA cases.
Ray is expected to file the bill Friday afternoon. Though still subject to change, the bill has an emergency clause attached. That means as soon as Sanders approves the bill, it’s law. That could be as early as the end of next week.
Sanders said the changes to the public records law would help protect her family. She’s been on the receiving end of death threats since her time as Donald Trump’s press secretary, and the release of her travel patterns and methods put her and her family’s lives at risk, Sanders said. This change limits residents’ access to information about where the governor has gone, and who she traveled with using taxpayer dollars.
I would never support anything that imperiled the governor or her family. But I don’t believe her spiel. We don’t have to eviscerate a great transparency law to protect an imperious politician. Identify any real risks and narrowly address those — that’s how you do that.
— johnbrummett (@johnbrummett) September 8, 2023
Deliberative process and attorney exemptions
Changing access to records about discussions still in the deliberation phase is a gray area. The proposed bill would effectively block access to records in which state agencies, boards or commissions are still in the brainstorming or discussion phase. This would include memos, letters, advisory opinions and recommendations, according to the draft bill. Sanders said Friday this would help encourage state employees and officials to share ideas without fear of them ending up on the front page of the newspaper.
Records prepared by attorneys representing elected or appointed state officials would also be exempt from the Arkansas Freedom of Information Act during litigation, according to the draft bill.
Further, the amended law would take the state off the hook for paying plaintiffs’ attorney fees when the state loses in court. If someone sued the state on the grounds of a violation to the Arkansas Freedom of Information Act request and won, they would still have to bear the cost for the attorney.
If you’re an Arkansas Republican legislator who isn’t unspeakably embarrassed that Sarah Sanders is using you as a pawn in her war on transparency and accountability, you should definitely rethink why you ran for office in the first place.
— BHR (@BlueHogReport) September 8, 2023
It seems like lots of changes are on the horizon, but Sanders said Friday the changes won’t actually affect the function of the public records law.
“This legislation isn’t about any one particular person,” Sanders said. “It’s about protecting the vulnerabilities within our law, stopping the weaponizing and harassment that frankly, is what FOIA is being used for in some cases right now.”
