A proposed amendment to the Arkansas Constitution that would create the right to state government transparency isn’t sufficient for the 2024 statewide ballot, Attorney General Tim Griffin wrote in a Tuesday opinion.
Griffin rejected the proposed ballot title and popular name, saying the amendment lacks clarity in its use of specific terms, including “government transparency.”
“Since your ballot title simply repeats the phrase ‘government transparency’ without providing any further context, I cannot ensure your ballot title does not omit material that qualifies as an ‘essential fact which would give the voter serious ground for reflection,’” Griffin wrote to David Couch and Jen Standerfer, two attorneys who drafted the proposal for Arkansas Citizens for Transparency (ACT).
The group can either tweak their proposal and resubmit it to Griffin for approval or appeal to the courts.
The nonpartisan ACT submitted ballot language for the proposed amendment to Griffin’s office on Nov. 27 and followed it last week with a companion measure, a proposed initiated act. Griffin has until Dec. 18 to decide whether to accept or reject the proposed act.
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In addition to creating a citizen’s right to government openness, the proposed Arkansas Government Transparency Amendment would prohibit “the General Assembly from amending a law or enacting law to diminish public access to government.” The proposal’s text defined “diminishes public access to government” as “making a public process, public meeting, public notice, or public record less transparent or modifying the legal standard for or limiting the recovery of penalties, fees, expenses, or costs.”
Under the rejected proposal, 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.
In emergencies, the amendment would allow the General Assembly to immediately enact a law diminishing public access to government with a 90% vote, but such a measure would still go before the people at the next general election.
Griffin wrote that the terms “government transparency,” “public record,” “public meeting,” “public notice,” and “public process” are not defined in the proposal and therefore not clear enough to put before voters.
The “lack of the full text” of the proposed amendment formed additional grounds for rejection, Griffin wrote.
“You appear to have chosen to incorporate existing state statutes into your proposal without explicitly citing or naming them but by using key terms from those statutes without carrying over those terms’ definitions,” he said.
Couch, who is known for his work on ballot initiatives, said the lack of reference to existing statutes was deliberate and proper. The Arkansas Supreme Court has ruled repeatedly that a ballot title is supposed to “accurately reflect the terms” of a proposed amendment, and the courts will decide later how to interpret the amendment if it passes, Couch said.
Our Attorney General’s Opinion indicates that the right to government transparency should be more restricted than our other rights in the Constitution.
– The Arkansas Citizens for Transparency ballot measure drafting committee
‘The most transparent process there is’
ACT unveiled the first draft of the proposed amendment in October. Couch, Standerfer and the other drafters later realized 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 proposed Arkansas Government Transparency Act would:
- Codify a definition of a public meeting, which has long been unclear.
- Broaden the legal definitions of a “governing body” and “communication” among members of a governing body.
- 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.
- Create the Arkansas Government Transparency Commission to help citizens enforce their right to obtain public records and observe public meetings.
- 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.
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.
ACT unveiled multiple drafts of the proposed act and amendment before submitting them to Griffin’s office. Couch said seeking and receiving public feedback made the drafting process “the most transparent process there is.”
Griffin wrote in his opinion that the use of the word “transparency” in the ballot title had “partisan coloring” and “seems more designed to persuade than inform” potential voters.
The ACT drafters were “greatly perplexed” by this statement, especially since they have received input from Arkansans of a variety of political affiliations statewide, they said in a news release Monday afternoon.
“No one of any party was confused by what ‘government transparency’ means,” they said. “No one has in any way viewed this as a partisan issue. In fact, the people have repeatedly expressed how refreshing it is to see Arkansans of all parties and perspectives come together on this issue… The Constitutions do not define free speech, free exercise of religion, or the right to bear arms. Our Attorney General’s Opinion indicates that the right to government transparency should be more restricted than our other rights in the Constitution.”
The drafting committee will “take any and all appropriate action necessary to empower the citizens of Arkansas and ensure their right to transparency and openness at every level of government,” they said in the statement.
Whatever action the group takes on the amendment will be independent of Griffin’s upcoming decision about the proposed act, Couch said.
“Given the outrageous objections to the amendment, I’m sure there will be many more equally outrageous objections to the act, so we’ll deal with it as it comes,” he said.
