Arkansas governor calls special session to alter FOIA, cut taxes

This story was updated at 5:30 p.m. on Friday, Sept. 8, 2023, to include comments from the Arkansas Press Association.

Arkansas Gov. Sarah Huckabee Sanders is asking the state Legislature to convene next week to cut income taxes, ban vaccine mandates for state employees and significantly curtail what state government records are available to the public.

Sanders on Friday called the Arkansas General Assembly into special session, expected to begin Monday and end on Wednesday.

“Cutting taxes, improving efficiency and expanding liberty. That is what this legislative session is about,” Sanders said at a news conference on Friday.

There have been bipartisan calls for additional tax relief since Arkansas ended its fiscal year in July with a more than $1 billion surplus, but state leaders had planned to wait until next year’s fiscal session to take action.

Arkansas lawmakers say surplus shows need for tax cuts, but ’23 special session unlikely

However, the tone around a potential extraordinary session changed in recent weeks as the number of COVID-19 cases in the U.S. has increased and Sanders’ travel expenses and use of the State Police airplane have drawn scrutiny. 

Sanders said Friday that “government bureaucrats” have used the pandemic to trample on citizens’ constitutional rights and the Arkansas Freedom of Information Act is being “weaponized” to endanger the security of her family and bog down state government operations.

The state Legislature meets for regular legislative sessions every odd-numbered year, as it did from January to May. It meets in fiscal sessions in even-numbered years. 

The governor may call the General Assembly into special session and set the agenda at any time in the interim. However, lawmakers may consider legislation outside of the governor’s call with supermajority approval, though that is not common.

The Legislature last met in special session last year to consider tax-cutting legislation.

Public records

Government transparency advocates met Friday’s news with shock and frustration.

A bill filed Friday proposes the addition of four new exemptions to the Arkansas Freedom of Information Act:

• Records that reflect the planning or provision of security services provided to the Governor and other state elected officials.
• Records revealing the deliberative process of state agencies, boards, or commissions.
• Records prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission in anticipation of litigation or for use in pending litigation.
• Records created or received by an elected or appointed state officer, a state employee, or a state agency, board, or commission that would be covered by attorney-client privilege.

Sanders said the proposed changes are about safety and government efficiency.

“Some are weaponizing FOIA and taking advantage of our laws to hamper state government and enrich themselves,” she said. “They don’t care about transparency. They want to waste taxpayer dollars, slow down our bold, conservative agenda and, frankly, put my family’s lives at stake.”

She added that Arkansas has one of the most transparent public records laws in the U.S., and “these reforms will do nothing to change that.”

Experts disagree.

John Tull, a Little Rock attorney and expert on the Arkansas Freedom of Information Act, said the proposal is too broad, too vague and bad public policy. He also questioned whether the problem the legislation purports to address is urgent enough to warrant a special session or an emergency clause.

“This bill shoots a large hole in the Arkansas Freedom of Information Act.” said Tull, who is also a member of Arkansas Attorney General Tim Griffin’s Freedom of Information Act working group.

In her press conference remarks, Sanders focused on the need to update the FOIA to protect her and her family from security threats, which she said go back to her gubernatorial campaign last year and her time as press secretary in the Trump White House.

However, no security-related provisions were included in another Sanders-backed FOIA bill lawmakers voted down earlier this year. That bill, also sponsored by Rep. David Ray, R-Maumelle, included other provisions included in the special session proposal. 

While Sanders said the current proposal wasn’t in response to any one person or instance, it comes after a local attorney and blogger, Matt Campbell of the Blue Hog Report, has been requesting and reporting on Sanders’ use of the Arkansas State Police airplane for in-state travel.

On Tuesday, Campbell filed a lawsuit against Arkansas State Police for failing to provide a number of records related to Sanders’ and her family’s use of the ASP plane. Many of those records would be explicitly shielded from the public under the proposal, which would apply retroactively to some records going back to Jan. 1, 2022, a year before Sanders took office.

Asked how releasing travel logs after the fact would pose a security risk, Sanders said it could expose “sources, methods or patterns” that reveal how Arkansas State Police protect the governor and first family.

She said those determinations were made by security experts, not her.

Sen. Greg Leding, the Senate Democratic leader, said the bill drafts he had seen were far too broad and not narrowly tailored. He said the Democratic caucus appeared to be unanimous in opposition to the proposed FOIA changes.

“This appears to be aimed at shielding some of [Sanders’] travel from the public light,” Leding said. “I’m not indifferent to security concerns; that is a part of being in the public light. But this bill seems very broad and not narrowly tailored.”

Tull also expressed concerns about shielding the release of documents covered by attorney-client privilege. 

“That allows, in my opinion, an agency or any employee of the state or a commission to prevent a document from being FOIA-able by just copying an attorney on it,” Tull said.

Sen. Clarke Tucker, D-Little Rock, another member of Griffin’s working group, said the proposal also removes the public records law’s key enforcement mechanism — attorneys’ fees. 

Under Ray’s proposal, attorneys’ fees could only be recovered if the records custodian was proven to have acted arbitrarily or in bad faith. Tucker said that will be extremely difficult to prove.

That means that small newspapers and residents will struggle to find attorneys willing to take on public records cases when government officials abuse their discretion.

“The way they can convince a lawyer to file a lawsuit is to say: ‘You will be able to get your fees paid for if we win,’” Tucker said. “What’s the enforcement for FOIA at that point? I don’t think there is one.”

In a statement, the Arkansas Press Association questioned whether an emergency existed, requiring immediate action and an emergency clause. The governor’s security concerns are only addressed in a small portion of the bill, according to the APA.

“The Arkansas Press Association agrees that the security of our elected officials, their spouses and their children should be taken seriously and, where appropriate, sensitive information as it pertains to security should be protected,” the association said in a statement. “If that was the only focus of this bill, we would certainly understand the governor’s reasoning for calling a special session. But it’s not.

“This bill goes far beyond the goal of protecting our public officials and their families. If this bill passes, it will drastically weaken Arkansas FOIA laws and the public’s access to information. For all intents and purposes, this bill will eliminate the ability to hold our government accountable by shielding processes that provide essential context for decisions that affect millions of Arkansans. There must be transparency in government processes and accountability as to how taxpayer dollars are spent.”

Tax cuts

State Sen. Jonathan Dismang, R-Searcy, is the Senate sponsor of legislation that makes four main changes to the state’s tax code:

• Cuts the top individual income tax rate from 4.7% to 4.4%.
• Cuts the top corporate rate from 5.1% to 4.8%.
• Creates one-time $150 tax credit for taxpayers earning less than $90,000 in the ongoing tax year.

The legislation, Dismang said, will also set aside roughly $710 million in a reserve fund to protect the state from an economic downturn. 

“It will make sure we don’t have to reverse what we’re doing [with tax cuts],” Dismang said. 

Sanders said Arkansas finds itself struggling to remain competitive sandwiched between Tennessee and Texas, both states without a state income tax.

“With President Biden’s big government policies making it even harder for people to make ends meet, every Arkansan needs a little extra money in their pocket,” Sanders said. 

Leding said Democrats were still reviewing the legislation, but he said tax relief should focus on benefitting lower-income earners rather than the top earners subject to the top rates.

The three-percentage-point cut to the top individual income tax rate is expected to cost the state about $150 million, according to Sanders. 

The similar cut to the top corporate tax is expected to cost about $35 million annually.

Both cuts would take effect on Jan. 1, 2024.

The one-time credit is projected to cost about $155 million this fiscal year.

Earlier this year, the Legislature enacted a two-point cut to the state’s top individual income tax rate to 4.7% and the state’s top corporate income tax rate to 5.1%.