Plan underway to put constitutional amendment on ballot to strengthen Arkansas’ FOIA

Former state legislator Nate Bell and attorney David Couch said they will form a group to enshrine the state’s sunshine law into the Arkansas Constitution.

The push to put on the ballot a constitutional amendment to strengthen Arkansas’ Freedom of Information Act comes after a just-completed, four-day special legislative session where the state’s open records and meetings law took center stage.

Gov. Sarah Huckabee Sanders proposed an overhaul of the state’s Freedom of Information Act but ultimately settled on a scaled-down bill that exempts records related only to her security detail.

Act 7 passed on an 82-15 vote in the House and a 29-2 vote in the Senate.

In response to Sanders’ proposed changes to the Freedom of Information Act, Bell and Couch said they are working quickly to form a ballot question committee, the first step to beginning a constitutional amendment campaign.

“There’s a group of us who are actively collaborating on moving that forward,” Bell said. “We have been in discussion about, you know, what the content will be.”

The law Sanders signed Thursday is a scaled-back version of a more expansive attempt to amend the Freedom of Information Act. Under the new law, Senate Bill 10, now Act 7, exempts from the open-records law documents related to the governor’s Arkansas State Police security detail and “records that reflect the planning or provision of security services provided” to constitutional officers, Supreme Court justices and Court of Appeals judges.

The law requires Arkansas State Police to submit a quarterly report to lawmakers detailing expenses related to the governor’s protection detail. It also “does not limit the ability of Arkansas Legislative Audit to report information it obtains to the Arkansas General Assembly.”

The law is retroactive to June 1, 2022, something that Arkansas State Police Director Mike Hagar said was necessary in order to shield documents that included the planning for Sanders’ five-member protection detail, which began six months before the Republican governor took office.

Earlier proposals to amend the Freedom of Information Act during the session included broad carve-outs for documents concerning “deliberative process,” or communications between the governor’s staff and Cabinet secretaries. Additionally, there was a proposal to exempt records prepared by an attorney from disclosure. The two prior proposals also would have made it harder for people to recover legal fees for lawsuits filed under the Freedom of Information Act.

SB10 and HB1012, its identical House bill, were scaled back after widespread public outcry over the expansive proposals to amend the Freedom of Information Act, instead addressing only documents related to the governor’s security.

“We protected the police officers who protect our constitutional officers and my family in keeping their security information and tactics exempt from Freedom of Information Act disclosure,” Sanders said during a news conference Thursday at the Capitol.

Robert Steinbuch, a law professor at the University of Arkansas at Little Rock and author of a legal treatise on the Arkansas Freedom of Information Act, credited bipartisan support for what ultimately became Act 7.

“People from the far left, to the middle, to the far right, all of whom agreed that transparency isn’t an issue of left or right, it’s an issue of right or wrong,” said Steinbuch, who is also a columnist for the Arkansas Democrat-Gazette.

Steinbuch said he also supports a constitutional amendment to strengthen the Freedom of Information Act.

“I think the notion of enshrining transparency concepts in the constitution is a sound one,” he said. “Of course the devil will be in the details, or as they say, God is in the details.”

Couch is an experienced direct democracy campaigner who helped lead efforts to pass constitutional amendments to legalize medical marijuana and raise the minimum wage.

He said the wave of opposition to amending the Freedom of Information Act has made him optimistic.

“There has been overwhelming, outpouring support — bipartisan — overwhelming bipartisan support for a constitutional amendment to enshrine our freedom of information protections in the constitution so that the General Assembly or the governor cannot attack them again,” Couch said.

When asked, Sanders did not give up on further attempts to amend the Freedom of Information Act.

Senate President Pro Tempore Bart Hester, R-Cave Springs, said a working group formed by Attorney General Tim Griffin will discuss further changes to the law. Griffin said he expects the working group to come up with recommendations after Labor Day of 2024.

“What I’ve done is assembled people who are experts who know what they’re talking about, who have a variety of opinions, and they’re meeting,” Griffin said. “I’m not micromanaging what they’re coming up with.”

Griffin said the working group includes state Sens. Breanne Davis, R-Russellville, and Clarke Tucker, D-Little Rock; state Rep. David Ray, R-Maumelle; Deputy Attorneys General Ryan Owsley and John Payne; attorney John Tull III; and Ashley Kemp Wimberley, executive director of the Arkansas Press Association.

“I am serving on the Attorney General’s Working Group that will issue recommendations in the fall of 2024,” Wimberley said in an email Friday. “The work with that group is just getting started. As you know, APA just finished this whirlwind session and will regroup in the coming days. By the efforts of many this week, the overwhelming majority of Arkansas’ Freedom of Information Act was protected. I’m immensely proud of what was accomplished.”

The Arkansas Press Association has received criticism after releasing a statement Wednesday regarding scaled-back versions of the bills. The statement read: “The Arkansas Press Association is pleased this process has led to bills [HB1012 and SB10] that give our elected officials and their families a level of safety they deserve. We have stated we support reasonable safety provisions, and these bills offer that while also maintaining the strength of Arkansas’ Freedom of Information Act.”

Eliza Hussman Gaines, publisher of WEHCO Media Inc., the Democrat-Gazette’s parent company, is president of the Arkansas Press Association.

The Arkansas Broadcasters Association also released a statement Wednesday on X, formerly known as Twitter, that read: “ABA supports SB10 & HB1012 to amend the FOIA to protect sensitive security info that could jeopardize the safety of our Gov., her family, other elected officials & those around them. We appreciate the Gov. & General Assembly’s efforts to work together to address this issue.”

Dylan McLemore, a professor of communications at the University of Central Arkansas, criticized the Arkansas Press Association and the Arkansas Broadcasters Association for their statements. McLemore said Sanders interpreted the statements from the professional organizations as an endorsement of the legislation.

“So because they worded their statements in a way that endorsed a new exemption rather than being proud of fighting off the other exemption, you see how it’s being used,” McLemore said in an interview Friday.

Instead, McLemore said, the organizations should have emphasized their success in lobbying against two previous bills on the Freedom of Information Act that would have been much worse.

In a follow-up email, McLemore praised Arkansas Press Women for its statement issued Thursday on the changes to the Freedom of Information Act. That statement read: “We’re disappointed how changes to the Arkansas Freedom of Information Act are being done during a rushed special session and that there’s an emergency clause attached to it. The law may date back to 1967 but legislators have tried to modify it ever since in regular sessions.”

“No chance that statement will be used to endorse present or future attempts to weaken FOIA,” McLemore said in his email.

Kristin Netterstrom Higgins, president of Arkansas Press Women, said other groups played a key role in defeating what she thought were bad proposals to change Arkansas’ sunshine law.

“And the [Arkansas Press Association] as well as other groups were engaged very early in reaching out to legislators and reaching out to the public in asking them to talk to their legislators and to let them know about their opinions about what they think should happen with the FOI,” Higgins said. “And so now that this is behind us, this is over, we all need to come together and focus on keeping Arkansas’ FOI as strong as it is now.”

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