Proposed changes to the Arkansas Freedom of Information Act aren’t sufficient to appear on the 2024 statewide ballot, Attorney General Tim Griffin wrote in a Monday opinion.
Griffin rejected the proposed ballot title and popular name for the Arkansas Government Transparency Act a week after rejecting a companion proposal for a constitutional amendment.
Both proposals had “partisan coloring” and contained too many ambiguous or unclear terms, Griffin wrote to David Couch and Jen Standerfer, two attorneys who drafted the proposal for Arkansas Citizens for Transparency (ACT).
Some of the goals of the proposed Arkansas Government Transparency Act included codifying a definition of a public meeting, which has long been unclear and frustrating to members of government and the news media, and broadening the legal definitions of a “governing body” and “communication” among members of a governing body.
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The proposal defined a “public meeting” as “communication between two (2) or more voting or nonvoting members of a governing body for the purpose of exercising a responsibility, authority, power, or duty delegated to the governing body on any matter on which official action will foreseeably be taken by the governing body.”
This definition was too vague, Griffin wrote, because it did not define the phrases “responsibility, authority, power, or duty” or “delegated to the governing body.”
The proposed act defined “communication” as “without limitation a communication made in person, by telephone, electronically, or by other means.” Griffin said the placement of this definition in the proposed statute made its potential applicability unclear.
Griffin repeated a statement from his rejection of the proposed amendment, saying the use of the term “transparency” in both measures “seems more designed to persuade than inform.” He cited a 2012 opinion from former Attorney General Dustin McDaniel to support this statement.
“Nowhere in [last week’s opinion] or in this opinion have I said that ‘government transparency’ is a partisan issue,” Griffin wrote. “Rather, I — like my predecessor, who was of a different political party — am saying that the use of the term ‘transparency’ is tinged with partisan coloring.”
ACT’s seven-member drafting committee disputed this claim last week after Griffin rejected the proposed amendment. Nate Bell, a former Independent state legislator and a member of the committee, said he still opposed Griffin’s “ongoing demand” to define a term “which everyday, ordinary people understand.”
“There is not a word that’s more plain to explain what we’re talking about,” Bell said.
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Constitutional issues
Griffin also claimed some of the provisions in the proposed act would be unconstitutional if enacted.
For example, the proposal would create the Arkansas Government Transparency Commission to help citizens enforce their right to obtain public records and observe public meetings. The Arkansas Supreme Court would be responsible for appointing three of the five members.
“Requiring a judicial-branch official to appoint someone to a commission that is not related to ‘the administration of justice’” violates the portion of the Arkansas Constitution that separates the powers of the three branches of government, Griffin wrote.
Bell said he and the other drafters became aware of this conflict with the Constitution after filing the proposed act and will take it into account in future attempts.
The proposed act also sought to:
- Create stiffer civil penalties for violating the FOIA.
- Protect citizens’ right to appeal FOIA decisions to circuit court and collect attorneys’ fees if they win their case.
- Mandate that records concerning the planning or provision of security services to the governor and other state elected officials be considered public and accessible under the FOIA after three months.
The nonpartisan ACT formed in response to Gov. Sarah Huckabee Sanders’ signing of a law in September that shields the security records in question from public access after a special legislative session. Sanders advocated for several more exemptions to the FOIA that met bipartisan pushback and did not advance in the Legislature.
The proposed Arkansas Government Transparency Act would require circuit courts to review whether a security record should be withheld or disclosed, in response to a challenge from a records custodian. The outlined procedure for circuit courts to handle these challenges were “nearly all… procedural rules that attempt to control the pleading, practice, and procedure of the courts,” which violates Arkansas Constitutional Amendment 80, Griffin wrote.
Next steps
ACT can either tweak the proposal and resubmit it to Griffin for approval or appeal to the courts.
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The group unveiled multiple drafts of the proposed act and amendment before submitting them to Griffin’s office. Bell, Couch, Standerfer and the other drafters realized after revealing the initial amendment proposal that they would best be able to create enforceable government transparency policy by proposing an act to amend the state Freedom of Information Act in addition to a constitutional amendment, they told an audience in November.
The Arkansas Government Transparency Amendment would create a constitutional right to government transparency and prohibit “the General Assembly from amending a law or enacting law to diminish public access to government.” Under the proposal rejected last week, any law that would “diminish public access to government” would require approval by Arkansas voters upon referral by a two-thirds majority of the General Assembly.
Bell said he and the drafters were not surprised Griffin rejected both proposals. He also said ACT will submit new drafts for both the act and the amendment and is prepared to appeal to the courts if Griffin rejects more of their attempts.
“We’ll make a good faith effort to resubmit,” Bell said. “We hope he’ll review it in good faith and approve it for the ballot, and if he doesn’t, we’ll seek the remedies we need to seek.”
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