Secrecy added to Arkansas public records law serves only those with secrets

This commentary was updated at 5:25 p.m., Sept. 16, 2023, to correct the day when the Legislature submitted the bill to the governor.

This week’s hastily called — and unnecessary — special session of the Arkansas Legislature yielded some ugly changes to the state’s sunshine law but also provided a shining example of democracy at work.

The first proposal to amend the Arkansas Freedom of Information Act drew fierce pushback from nonpartisan transparency advocates, regular Arkansans of all political stripes and some lawmakers. 

Most opponents said the measure was too broad and that it would gut key parts of the FOIA. A provision exempting records showing “the deliberative process” of state agencies drew the most scorn. Many also objected to a broad blanket of secrecy that would be thrown over almost all records dealing with the security services provided by Arkansas State Police to the governor and other officials.

Some suggested that a blogger’s FOIA requests for records of flights taken by Republican Gov. Sarah Huckabee Sanders and her family aboard the ASP plane prompted the proposed FOIA amendments.

Arkansans opposed to the proposed changes gathered at the Capitol on Monday to tell lawmakers and the governor to keep their grubby hands off the public’s right to know. A crowd gathered in the Old State Supreme Court room for an anticipated committee meeting Monday evening, and several of them got into heated exchanges with bill sponsor Senate President Pro Tempore Bart Hester when he announced there would be no meeting.

By then, it was apparent that Sanders and legislative leaders did not have the votes to get House Bill 1003 and Senate Bill 7 passed, much less through committee.

Hester acknowledged as much on Tuesday when he presented revised legislation, Senate Bill 9, to the Senate State Agencies & Governmental Affairs Committee. He cited the intense interest in the proposed FOIA changes as a reason “we didn’t get to this point yesterday.”

“We spent 8 or 10 hours in caucuses alone working through these issues, working through concerns that were provided, probably, from many people in this room,” the Republican from Cave Springs said.

The new measure removed the deliberative process exemption but kept communications between the governor and her cabinet secretaries exempt from public scrutiny. It also kept the ASP security records exemption, exemptions for documents prepared by an agency attorney in preparation for possible litigation, and how and when attorneys fees are paid.

Hester said he felt good about the revised bill, but nearly two dozen citizens railed against it in a five-hour committee hearing. Some of the testimony drew heated responses from committee chair Sen. Blake Johnson, R-Corning. Johnson dismissed Fort Smith lawyer Joey McCutchen while the FOIA litigator was speaking and had citizen FOIA activist Jimmie Cavin ejected from the hearing room.

Lorri Justice, a longtime Republican Party activist from Pulaski County, told the committee she was unhappy with what she saw in the legislation.

“This is not transparency,” Justice said. She mentioned that she was in the room on Monday night and that “the only people in favor of a change to our FOIA bill are the bureaucrats.” 

“I want our FOIA to stay the same. I want us to be able to know what our government is doing,” she said.

Regarding the security records exemption, Justice said, “I think a list of who is on a past flight is not going to put the governor in any danger, especially considering the security she’s surrounded with at all times.”

Two members of the committee — Sens. Clarke Tucker, D-Little Rock, and Bryan King, R-Green Forest — also clearly opposed at least parts of the bill. The committee did not take a vote.

Sanders announced later Tuesday that she’d “asked the Senate and House to file a bill limited to security — the most critical and important aspect of FOIA reform. Nobody said changing the status quo would be easy but this is a great starting place for making our government safer and more effective.”

And a little after 7 p.m. Tuesday, Hester filed a third bill, SB 10, that kept the security records exemption but contained nothing else from the previous proposals.

Senate and House committees made quick work of the bill, and by 10:30 a.m. Thursday, both chambers had passed the Senate version and forwarded it to the governor. Sanders signed the legislation into law during an 11:15 a.m. press conference.

Tucker, one of only two Democrats who voted for the bill, noted publicly that he’d promised his colleagues that if they removed what he thought were the worst parts of the bill and kept the security exemption, he would vote for it. After getting grief on the site formerly known as Twitter, he explained his vote in more detail.

Getting a lot of questions, so here is what happened on SB10. Short version: we were dealing with some awful FOIA bills this week, bills that would have crippled government transparency in Arkansas. I did everything in my power to kill/limit these bills. 1/

— Clarke Tucker (@clarketucker) September 13, 2023

Despite widespread dissatisfaction that any changes to the FOIA made it through the hurried four-day special session, the way the governor and her floor leaders swiftly filed new versions of the bill shows the democratic process in full flower and the power of citizen action.

I too think the final legislation remains too broad and succumbs to the tendency of police to keep public information secret, as well as the tendency of this governor to prefer secrecy over transparency. But I don’t blame Tucker, the Arkansas Press Association or the Broadcasters Association for their pragmatic positions on the final bill. For better or worse, press and broadcast groups have other issues on which they will need legislative support.

Regardless, transparency supporters should challenge the limits of the new law. But we should all be more concerned that this is only the beginning of a continued assault on Arkansas citizens’ right to know. Sanders said as much in her bill-signing press conference:

“We’re not going to stop continuing to fight for more government efficiency and effectiveness, and I think this is just the beginning of that process,” Sanders said.

Ah, yes, “Efficiency and effectiveness,” the battle cry of authoritarians everywhere.

This article is part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations cover how democracy works and the threats it faces. To learn more, visit usdemocracyday.org.