State Freedom of Information Task Force opposes bills to weaken the law

Rep. Mary Bentley, R-Perryville, returns to her seat after listening to debate about SB307 on the floor of the House of Representatives at the Arkansas state Capitol on Tuesday, March 14, 2023. (Arkansas Democrat-Gazette/Colin Murphey)
Rep. Mary Bentley, R-Perryville, returns to her seat after listening to debate about SB307 on the floor of the House of Representatives at the Arkansas state Capitol on Tuesday, March 14, 2023. (Arkansas Democrat-Gazette/Colin Murphey)

The Arkansas Freedom of Information Act Task Force voted unanimously on Tuesday to oppose two bills filed in the House of Representatives that would alter the state's open-records law.

House Bill 1726, filed Monday by Rep. David Ray, R-Maumelle, is "entirely an attack on the FOIA," said Task Force member Robert Steinbuch, who is a law professor at the University of Arkansas at Little Rock and columnist for the Arkansas Democrat-Gazette.

He said people in Arkansas want to see how the sausage is made, and Ray's bill eliminates that process.

"This bill says that essentially all of the pre-decisional documents are withheld, as well as attorney documents are withheld," said Steinbuch. "So the only thing that's not withheld are the stuff that they already put out there, the new policies, policy statements."

Ray's bill proposes to charge people by the hour for Freedom of Information requests that require over eight hours to retrieve, review, redact and provide the records.

"I guarantee you no FOIA request is going to be done in less than eight hours, or predicted to be done in less than eight hours," said Steinbuch, implying government entities will drag their feet so they can charge for filing requests under the state's open-records act.

"In the 20 years that I've been here, this is the single largest attack on the Freedom of Information Act ..." said Steinbuch. "There's no fixing this bill because this isn't an attempt to alter the FOIA in any meaningful way. This is 100%, entirely an effort to disembowel the FOIA."

Task Force Chairman Rob Moritz said Ray had said he would attend Tuesday's Zoom meeting, but texted shortly before the meeting was to begin, saying he couldn't make it.

Ray didn't return an email late Tuesday seeking comment. But in a statement on Monday, he said, "My bill aims to preserve strong government transparency while addressing the problems caused by people who weaponize FOIA and use it as a tool of harassment to simply throw sand in the gears of state government."

Joey McCutchen, a Fort Smith lawyer who has handled several Freedom of Information cases, said Ray and the bill's co-sponsor, Sen. Breanne Davis, R-Russellville, plan to bring the bill before the House State Agencies and Governmental Affairs Committee today and he hoped members of the Task Force show up to testify at that meeting.

McCutchen said the lawmakers were trying to cram the bill in at the end of a Legislative session, "ram it through and take away the rights of the people to know because that's what FOIA is all about."

McCutcheon noted that neither Ray nor Davis attended the virtual Task Force meeting on Tuesday.

"To bring a bill of this magnitude and not show up today is in my opinion very disheartening, to say the least," he said. "I think a bill of this serious nature shows the amount of disrespect to the people's law and therefore to the people themselves."

Besides opposing the bill, task force members included in their vote the message that they believe House Bill 1726 is not in the best interest of the people of the state of Arkansas.

Jimmie Cavin, a member of the audience, said "This bill is not of the people for the people. This bill is of the government for the government."

Alyson Hoge, managing editor of the Democrat-Gazette, said "we are very much opposed to this proposal." She, McCutchen and Cavin attended the task force meeting as audience members.

"The records are, in our opinion, owned by the taxpayers," said Hoge. "The buildings that the records are housed in are owned by the taxpayers, and everybody who receives a paycheck or some sort of benefit from the taxpayers, they should answer to the public as well."

House Bill 1726 provides many ways that records could be concealed from public view, "and it will stop us from being able to keep tabs on public officials," said Hoge.

Records of undisclosed investigations by law enforcement agencies are currently not public under Arkansas' Freedom of Information Act.

But Ray's bill would broaden the exemptions in that section of Arkansas Code Annotated 25-19-105(b)(6) to include "ongoing investigations" by law enforcement agencies of suspected criminal activity "and any evidence or materials likely to be used by law enforcement in a criminal prosecution."

House Bill 1726 would exempt records prepared "by an attorney representing a governmental agency or a public servant acting in the performance of his or her duties or within the scope of his or her employment; and in anticipation of litigation or for use in pending litigation."

"With the attorney exemption ... an attorney representing an agency can just lay their hands on some records, and the next thing you know, all those records are exempt," said Hoge.

She said Gov. Sarah Hucakbee Sanders "could have a great influence" over whether the bill passes.

Alexa Henning, Sanders' spokeswoman, said in an email on Tuesday: "The Governor supports improving Arkansas' FOIA laws, some of the most outdated in the country. Private actors abuse our FOIA process for personal gain causing increased costs to taxpayers and distraction from the important work of public servants, like law enforcement who encounter requests that impede ongoing investigations and delay justice for victims. This bill brings Arkansas in line with other states, to improve government services and cut costs."

"It's very disappointing that the governor would be behind this bill, and that the governor would not take some sort of step to keep the records and the meetings open for the people," said Hoge.

Task Force member John Tull said Arkansas fashioned its Freedom of Information Act after Wisconsin's, and it's one of the strongest in the country.

House Bill 1610, filed by state Rep. Mary Bentley, R-Perryville, would allow members of a governing body to meet in small groups and discuss public business.

"The people's business should be heard by the people," said Tull.

The Task Force also voted unanimously on Tuesday to oppose House Bill 1610.

Bentley's bill is also scheduled to go before the House State Agencies and Governmental Affairs Committee today.

The bill would amend the open meetings portion of the state's Freedom of Information Act to apply only if there were a quorum of lawmakers present. A quorum is the minimum number of lawmakers needed to be present to take action and differs from body to body.

According to the Arkansas Attorney General's 2022 Freedom of Information Act Handbook, if two or more elected officials meet to discuss official business it could be considered a meeting and must be open to the public.

The amended version of Bentley's bill filed Monday would change the minimum requirement to "more than one-third" of the lawmakers to be present for a meeting to be subject to the Arkansas Freedom of Information Act.

Bentley's bill was voted down in committee earlier this month, but she has the opportunity to present it again.

The Task Force was created by state law in 2017 and tasked with reporting to the General Assembly its recommendations concerning proposed exemptions from or additions to the Arkansas Freedom of Information Act.

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