Sunshine breaks through? Three bills cast a ray of hope

Just in time for Sunshine Week come several bills affecting Arkansas’ landmark Freedom of Information Act. 

Usually, legislative proposals involving the FOIA seek to remove more records or government activity from public scrutiny, not make things more transparent. In fact, a couple such bills have been filed in the current session.

But I’d like to draw attention to some positive movement during a week dedicated to the government transparency. For this is Sunshine Week, an annual celebration and promotion of the public’s right of access to public information and open meetings.

Refreshingly, three bills reviewed by the Arkansas Freedom of Information Act Task Force on Friday would actually enhance the public’s right to know what officials are doing with their tax dollars.

The bills, filed by Republican Sen. Alan Clark of Lonsdale, would require holders of public records to respond to records requests in writing within three days, mandate FOIA training for local public officials, and define a “meeting.” 

Senate Bill 380 would require a records custodian to respond in writing whether no records exist that are responsive to an FOIA request, if responsive records exist but are subject to legal exemptions, and to identify the proper custodian of the records if the custodian who received the request “lacks administrative control over any responsive records.”

Fort Smith attorney and well-known FOIA warrior Joey McCutchen said the legislation is needed because local officials sometimes do not respond to public records requests if they don’t have the documents or the documents are exempt from public disclosure. The person seeking the records is then left wondering if they are being brushed off by the official, breeding further distrust of government.

The FOIA already requires officials in charge of public records to make the documents available upon request (in other words, immediately) unless the requested records are in storage or active use. If the latter case applies, the records administrator has three days to notify the requester of the time and date when the records will be available.

I have some concern that if this bill becomes law that officials will now believe they don’t have to make documents immediately available and will have up to three days to reply to any records request. Most officials I’ve dealt with over the years reply quickly and will ask for more time to fulfill the request if it comes late in the day or if the request is voluminous. Most reputable journalists and citizens of goodwill make accommodations for often harried holders of public records.

The sunshine provided by freedom of information laws works best when officials and the people seeking public documents act in good faith. But we all know or have known officials who actively don’t want taxpayers to know what’s being done in their name.

That’s why SB 380 is a good sunshine bill. It makes clear that the holder of a public record has to respond in writing to a request and leave no doubt about what next steps a requester might need to take.

Another good dose of sunshine comes via Senate Bill 381, which would mandate annual training in the public records and open meetings requirements of the FOIA for the governing bodies of cities, counties and school boards. Discussion during the task force meeting indicated the bill’s sponsor might amend it to address concerns about requiring in-person training, such as allowing online, pre-recorded training that can be accessed individually rather than require all members of a public body to attend a live session.

Regardless, mandatory training in the FOIA for public officials — veterans or the newly elected — is long overdue.

Finally, Senate Bill 382 seeks to address a thorny issue that has plagued Arkansas’ FOIA for decades: what constitutes a meeting of a public body or publicly-funded entity.  The FOIA doesn’t define a meeting. It says only that “all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.”

The state Supreme Court has addressed the issue in numerous rulings but has left it to the Legislature to define “meeting.” So far, legislators haven’t taken the bait. In a 2019 case, Fort Smith v Wade, the high court ruled that emails exchanged by a city administrator and city directors about a civil service board constituted a meeting under the FOIA because they discussed city business and sought opinions on different courses of action.

“Exempting electronic communication [from the concept of a meeting] would allow governmental officials who are so inclined to make decisions in secret, leave the public in the dark, and subvert the purpose of FOIA’s open-meeting  provisions,” the court majority ruled.

SB 382 would define a meeting as “the convening of two or more members of a governing body of a public entity.” The bill declares that a chance meeting, of two or more officials would not be a meeting — unless of course the officials “discuss, deliberate or decide public business” during “any chance interaction, informal assemblage or electronic communication.”

I doubt the verbiage will settle the “what is a meeting” debate, but the proposal would help clarify matters for many public officials who might otherwise just want to ignore the public’s right to know.

I’m sure there’ll be some other bills this session that seek to undermine or even gut our state’s 56-year-old Freedom of Information Act, but these three bill do much to shed a little more light on local government.

That they were filed just as the annual Sunshine Week observance got underway is a hopeful sign.