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.

About salbarado

Journalist since 1972. Society of Professional Journalists member since 1979. Past SPJ offices: Greater MidSouth Pro Chapter president; SPJ Region 12 director, 2006-2011; SPJ President 2012-13, SPJ Foundation (formerly SDX Foundation), secretary 2018-present. Member of Investigative Reporters & Editors since 1988. City Editor, Arkansas Democrat-Gazette, mid-2012 to mid-2013. Projects Editor, Arkansas Democrat-Gazette, 7.31.2007 to 1.31.2020 .
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