Under attack: Arkansas FOIA

Arkansas’ Freedom of Information Act turned 50 on Feb. 14. Whether it survives another 50, or even another five, remains an open question as the Legislature enters the third and likely final month of the 2017 general session.

Even in these hyperbolic times, that is not an exaggeration.

At least a dozen of the 32 FOIA-related bills being tracked by the Arkansas Press Association would create new or expanded exemptions from disclosure.

Two of those bills have cleared House and Senate and likely will get the governor’s signature this week. One bill closes records of the State Capitol Police. The other closes Arkansas State Police records related to the Governor’s Mansion.

And these aren’t the worst of the lot.

APA Executive Director Tom Larimer has called the volume of bills and their intent an “unprecedented assault” on the state’s public records/open meetings law, the worst he’s seen in his 12 years working with the General Assembly.

The attitude toward the FOIA, and specifically “the press,” at the Capitol is hostile, Larimer said in a newsletter to members. He speculates that the animosity toward government transparency in Little Rock has been fueled by the anti-media sentiment radiating from Washington, D.C. One state senator admitted as much to a reporter, Larimer noted.

What’s unfortunate about this hostility is that it’s ultimately directed at the people of Arkansas, who will lose a lot more than “the press” as their government grows darker and darker.

Larimer doesn’t say it, but legislators act as though they don’t have to consider testimony from opponents of their bills. Legislators once consulted with the FOI coalition (I’m a member) on proposals affecting the FOIA before or shortly after introducing legislation.

No longer. I suspect they don’t care because they’ve already horse-traded supporting votes in closed-to-the-public caucus meetings before the first public committee hearing is even held.

And from the evidence, it appears most legislators don’t even do cursory research to see how other states’ public records laws have been amended to accomplish more narrowly stated goals.

Arkansas’ FOIA stands out for having only 23 exemptions for public records compared with hundreds of exemptions that have diluted and made toothless similar statutes in states like Florida and Tennessee.

Law professor Robert Steinbuch told the Arkansas Democrat-Gazette that two bills in particular would “disembowel” the FOIA.

Steinbuch, co-author of The Arkansas Freedom of Information, Sixth Edition, textbook, cited a bill that would close off public agencies’ attorney-client communications and lawyer work product and a bill that addresses “unduly burdensome requests for disclosure.”

SB373 by Sen. Bart Hester, would create FOIA exemption #24. It says simply that “A record that constitutes an attorney-client communication or attorney work product” is exempt from disclosure. The bill was amended in a House committee to say, “attorney-client privileged communication.”

Originators of the bill, the University of Arkansas System, say it’s needed to level the legal playing field in litigation. As the FOIA stands now, they say, opposing counsel can access their strategy and communications about pending and potentially pending litigation.

A UA System attorney says Arkansas is one of only three states that don’t specifically exempt public-agency attorney-client communication or work product from disclosure.

That may be, but the bill as written, even including “privileged,” is so broadly written that a university, say, could simply pass documents in front of its lawyers and claim attorney-client privilege. Even the president of the Arkansas Bar Association told legislators it was too broad.

The other bill Steinbuch cited, HB1622 by Rep. Bob Johnson, seeks to do away with the three-day period in which officials must respond to public records requests to give them more time “in the case of certain large or complicated requests.”

Agencies currently must make requested records immediately available for inspection. The law allows them three days to respond if the records are in use or in storage. The three-day rule also requires officials to set a date and time when the records will be available. It doesn’t specify that the records must be available within three days, though some requesters and officials interpret it that way.

Many officials often abuse the grace period. Most journalists understand that large data requests take time to compile and typically negotiate with officials on when the documents will be provided. Some county governments aren’t online and don’t have digitized records.

The worst thing about HB1622 is that it sets no deadline for when an agency must supply information it considers “large or complicated” or “unduly burdensome.” It also lets officials define those terms.

“This will allow government bureaucrats to string along responses so as to effectively never respond,” Steinbuch told the Arkansas Democrat-Gazette.

As for the Capitol police and state police records, the stated intent was to protect security plans, but the soon-to-be-laws are written so broadly as to include just about anything else that might inform taxpayers about how their government operates.

A separate bill, SB 12 by Sen. Gary Stubblefield, would also allow local school districts and university administrators to hide from the public anything about school security “that upon disclosure could reasonably be expected to be detrimental to the public safety.”

The exemption includes “without limitation,” safety plans and procedures, risk assessments, studies or systems as well as information about “the number of licensed security officers, school resource officers, or other security personnel, as well as any personal information about those individuals.”

In other words, many Arkansas legislators want to create a black hole where public education security is concerned. They also are laying the groundwork to let schools create secret police forces.

One legislator commented during hearings on this and similar bills that open-government advocates, specifically the press, lack common sense in interpreting what legislation might do.

Anyone who’s reported on public agencies or tried to pry information out of recalcitrant local officials knows that records custodians, not journalists, more often display the lack of common sense.

These aren’t the only bills that would chip away at Arkansas’ FOIA.

One bill would close off access to police dash and body camera footage. Another would exempt photographs and video and audio recordings that include the death of a police officer, as well as any other recordings immediately before and after the officer’s death.

As I said, it’s no exaggeration to believe Arkansas’ Freedom of Information Act could be on life support after this legislative session.

The late Robert McCord, former SPJ president and Arkansan who was instrumental in getting the law passed in 1967, must be spinning.

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A tornado story – Part 1

The Long Road – Prelude: April 27, 2014

I was flying home from the annual spring meeting of the Society of Professional Journalists board of directors in Indianapolis.

I was supposed to arrive in Little Rock some time after 6 p.m., but my connecting flight out of Chicago had been delayed.

I’d called my wife Linda from O’Hare to let her know I’d be late, but didn’t know how late.

She had already left our home in west Pulaski County, headed to Bill and Hillary Clinton National Airport. She mentioned that she might turn around and go back home. I suggested that she not do that because the delay might not be that long. So she continued on and ran some errands before heading to the airport.

As it turned out, the delay wasn’t that long – no more than half an hour, and the plane took off not much later.

The flight to Little Rock was a little bumpy, but nothing out of the ordinary.

The trip did take longer than usual, though, as the pilot took a wide swing to the west before heading east again to avoid significant thunderstorms that were passing through Arkansas.

We landed behind the storms a little before 8 p.m.

Linda and I got in the car, and I drove on wet streets to P.F. Chang’s, a favorite Sunday dinner stop.

We had just ordered our food when Linda started getting email from neighbors asking where she was and whether she was OK.

Neighbors knew I was out of town and that she would likely be home.

I got a phone call from a colleague at the newspaper office who also asked if Linda and I were OK and said that a neighbor and suburban police chief was looking for us because our house had “incurred extensive damage” from a tornado that had passed through the area around 7 p.m.

The police chief and a neighbor who is a volunteer firefighter wanted to be sure Linda had not been at home when the tornado ripped it apart. They’d worked their way uphill through downed trees and power lines to the house and worried that they could not find her.

We assured our friends and neighbors that we were OK, but expressed concerns about our cats.

One of the neighbors said he’d seen a gray-and-white cat lying on the foot of our bed in the master bedroom, which he said appeared to be the only intact room in the house.

That left three cats unaccounted for.

Linda had the restaurant staff put our food in to-go containers, and we dashed off toward home, about 15 miles from the restaurant.

We got as far as the intersection of Kanis and Ferndale Cutoff roads, where sheriff’s deputies blocked all from traveling further except for first-responders, power company trucks and tree-cutting crews.

While parked in a restaurant parking lot at the intersection, we learned that three members of a family that lived in the valley just below our ridge-top home had died in the storm.

We could learn little more – not even whether our nearest neighbors had made it through the twister – so we turned back toward Little Rock in search of a place to stay that night.

Linda slept very little, anxious about the cats: geriatric, female Pretty Face, the bed-dweller; Foots, a 19-pound orange male tabby; Mycroft, a 12-pound gray male and the youngest of the clabber; and Spot, a sleek but crabby white female with orange splotches.

My own anxieties about the house, and its contents, kept me up for a while, but exhaustion from the trip finally won out and I slept fitfully in the hotel room we’d found.

Hotels would become our home for the next month.

(To be continued)





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A missed opportunity

Last Friday night, I muffed an opportunity to extol the need for strong public records and open meetings laws.

The occasion was the Arkansas Press Association’s annual convention, where I received the APA’s Freedom of Information Award, which is given each year to someone who fights to keep publicly funded organizations transparent and accountable to the public. The award can be given for specific actions or for a body of work.

My membership on the Arkansas Freedom of Information Coalition and the FOI committees of both the Society of Professional Journalists and the Associated Press Media Editors and my term as SPJ president in 2012-2013 likely played a part in the APA’s decision to recognize me.

The plaque – a gold-colored, topographically accurate outline of Arkansas against a red background – was presented after several APA members received awards for outstanding service or for 50 years of service in the newspaper business and gave strong, and sometimes funny, acceptance speeches.

I was totally unprepared to speak, and my usual gift for improvisation seemed to desert me.

I told a disjointed and mercifully truncated story of how I came to be an accidental journalist and spoke about an indelible image from my early career when I covered the Terrebonne Parish Police Jury in Louisiana.

The police jurors (think county commissioners, only worse) met at a large table facing each other in an old courtroom. Citizens who had business before the jury or simply wanted to observe democracy in action sat several feet away, separated from the police jurors by the courtroom’s bar.

No microphones insured that the white guys gathered around the table could hold private discussions about the agenda items. Any documents in their meeting packets were not routinely shared with the public or the reporters in attendance.

I told my audience last weekend that my passion for openness in government can be traced to that scene: “Twelve guys sitting around a table making decisions about other people’s lives” with no concern about letting the public in on the decision-making.

And then I shut up, said thank you again and returned to my seat.

But I could and should have said a few more things.

I could have said that keeping government open and public officials accountable requires constant action as well as vigilance.

I should have said that open records and open meetings laws routinely come under attack, especially during legislative sessions and especially since Sept. 11, 2001. The creeping militarization of our police forces and the spreading excuse of “security” to support secrecy at all levels of government are especially troubling.

I could have said that public officials and corporate bosses who boast about their “transparency” usually are using double-speak and more than likely are opaque when it comes to keeping the public informed.

I should have mentioned specifically the battle the Democrat-Gazette waged last year to force openness on the self-proclaimed transparent administration of the University of Arkansas at Fayetteville.

The issue itself – millions of dollars in overspending by the university’s fundraising arm – was minor in the larger scheme of public corruption, police misconduct and life-threatening official secrecy.

But the university’s obstinacy in not releasing a treasurer’s report on the overspending and its refusals in the past to simply comply with the state Freedom of Information Act bred distrust of its motives.

The newspaper sued for access to the treasurer’s report. The university relented after a couple of days but never backed off its contention that the report comprised a personnel evaluation that was exempt from the FOIA. Instead it claimed that the employees mentioned in the report

I could have said the newspapers as institutions often are less than transparent when dealing with their readers and customers.

I should have said that my work on behalf of freedom of information would not be possible if not for the unwavering support of the Democrat-Gazette’s leadership team, specifically Managing Editor David Bailey, WEHCO Media president Nat Lea and Publisher Walter E. Hussman Jr.

But I digress. The important message I needed to impart to the audience was this:

Democracy dies when secrecy reigns. And right now I fear secrecy has the upper hand.



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Orwell would understand

This story appeared in June 18, 2014, edition of the Arkansas Democrat-Gazette.

Publication: Arkansas Democrat-Gazette; Date: Jun 18, 2014; Section: Front Section; Page: 1  

Private option enrollees to chip in under proposal ANDY DAVIS ARKANSAS DEMOCRAT-GAZETTE
    A proposal being designed by Arkansas Medicaid officials would require many people covered under the state’s so-called private option to make monthly contributions, ranging from $5 to $25, to help pay the cost of their medical care.
    In return, participants in the expanded Medicaid program will be able to accumulate up to $200 in an “independence account” that they could use to pay the premium for private coverage if they leave the private option, the officials told state lawmakers Tuesday.
    Robin Arnold-Williams, a partner with the Leavitt Partners consulting firm, told legislators with the Arkansas Health Insurance Marketplace Oversight Committee that the proposal is designed to educate participants about health care costs and insurance, promote personal responsibility and reduce the potential “cliff” of reduced benefits that participants could face upon switching from the private option to another form of coverage.
    Enrollees in the private option do not pay premiums now, and those earning less than the poverty level are not required to contribute any money toward the cost of their medical care.
    Enrollees with incomes of 100 percent to 138 percent of the poverty level are charged copayments — $8 for a doctor’s visit or $10 for a visit to a specialist’s office, for instance.

    Those out-of-pocket charges are capped at $604 for the year.
    Although other states are pursuing similar initiatives, Arkansas Surgeon General Joe Thompson said the independence account program would be the first of its kind in the country.
    “I think we’re pushing the envelope on testing different strategies that other states have not done,” Thompson said.
    Act 1498 of 2013, which created the private option, requires the state Department of Human Services to put such a program into operation next year.
    Special language included during this year’s fiscal session in legislation that authorized funding for the state’s expanded Medicaid program, including the private option, requires the state to submit drafts of the independence account program for public comment by Aug. 1 of this year.
    The legislation requires the state to apply to the U.S. Department of Health and Human Services for approval of the program by Sept. 15.
    The legislation prohibits the state from continuing the private option after Feb. 1, 2015, if the independence account program is not in operation by then.
    Thompson said he expects the state to apply for federal approval of the program next month.
    The initiative could help reduce the cost of providing coverage under the Medicaid program, although that is not the goal, he said.
    “It’s an educational opportunity,” Thompson said.
    Approved by the Legislature last year, the expansion of the state’s Medicaid program extended eligibility to adults with incomes of up to 138 percent of the poverty level: $16,105 for an individual or $32,913 for a family of four.
    As of May 31, more than 187,000 Arkansans had been approved for coverage under the expanded Medicaid program, including more than 152,000 who had enrolled in the private option.
    Under the private option, most people who qualify for coverage under the expanded program receive coverage through private plans on the state’s federally run insurance exchange, with the Medicaid program paying the premium.
    Those whose health needs are considered exceptional are assigned to the traditional Medicaid program.
    For those in the private option, the Medicaid program also makes additional payments to reduce or eliminate any required out-of-pocket spending for medical care.
    The independence account program, which will be required for private option enrollees with incomes of at least 50 percent of the poverty level, will charge copayments for the first time to enrollees with incomes of 50 percent to 100 percent of the poverty level, Thompson said.
    Those with incomes in that range will be expected to contribute $5 a month toward their accounts, while those with higher incomes will be expected to contribute $10 to $15, depending on their incomes.
    The state will match each monthly contribution with a $15 contribution into the account. Enrollees will be allowed to accumulate up to $200 of the state contributions in their accounts, which can be used to pay a premium for a non-Medicaid plan on the health insurance exchange when the enrollee leaves the private option.
    Enrollees who leave the private option and gain coverage through an employer can also use the account balance to pay the premium for an employer-sponsored plan.
    Making a contribution will also earn participants an additional benefit: They will not have to pay out of pocket for medical care as long as they pay their contributions on time for a given month.
    Those with incomes above the poverty level who fail to contribute to their independence accounts will have to pay any required copayments, as they are now required, if they seek medical care.
    Those with incomes below the poverty level who fail to make contributions into the accounts will still not be required to make copayments in order to receive care.
    However, the company hired to administer the program will bill the individual for the copayment, and it will be deducted from any balance in the independence account the person has accumulated. If the account does not have a balance, the participant would owe the amount of the unpaid copayment to the state.
    That was troubling to Sen. Linda Chesterfield, D-Little Rock.
    “You run the risk of criminalizing … the inability to pay what they probably can’t pay in the first place,” Chesterfield said.
    Arnold-Williams said it will be up to the Legislature to decide whether the state attempts to collect the money.
    Thompson said participants also will receive account statements with information about their coverage.
    Educating the participants about the initiative will be crucial, he said.
    “For most of these people, the only place they’ve been able to access care is the emergency room,” Thompson said.
    As of May 31, 81 percent of those who had been approved for coverage under the expanded Medicaid program had incomes below the poverty level, according to the Human Services Department.
    Thompson said he didn’t have information Tuesday on how many enrollees had incomes between 50 percent and 100 percent of the poverty level.

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A lot of you know what happened to Linda and me at the end of April — and since. I’ve told the tale in spurts and spots, but haven’t kept an ongoing record of events.

I’m a journalist, but a horrible keeper of journals. I’ve attempted over the years to keep daily journals, knowing that journals are good writing exercises and important for maintaining memory. But inevitably, the journals get fewer and fewer updates, languish, then cease. Like a lot of blogs, I know.

Anyway, over beer and sandwiches the other night, a friend and local SPJ leader asked if I’d been keeping a journal of events since the April 27 tornado exploded our home of nearly seven years.

You know the answer, right?

So, this will be my attempt to keep the record of Linda and Sonny’s Excellent Adventure, 2014 version. Look for the next chapter later this week.



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Hello world!

This is an attempt to keep a semi-regular journal of the adventures of BYUBOY50, a Cajun expat from Thibodaux, LA, who has traveled far and wide, but not far or wide enough.


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