By Tess Vrbin, Arkansas Advocate
A government transparency group sent a fourth draft of proposed changes to the Arkansas Freedom of Information Act on Thursday after Attorney General Tim Griffin rejected its third proposal.
In his opinion, Griffin cited a “misleading provision” of the text of the proposed act and ballot title. Previous submissions contained the same problem that “was unidentified previously and is the only remaining issue standing in the way of certification,” Griffin wrote.
“If you resolve this issue and resubmit with no other changes, I will expedite the response,” he wrote.
Arkansas Citizens for Transparency (ACT) has been trying since November to get Griffin to certify ballot language that would increase public access to government documents and meetings.
The nonpartisan group also submitted proposed ballot language for a constitutional amendment creating the right to government transparency, and Griffin certified the third iteration of the proposal Wednesday.
ACT was formed after Gov. Sarah Huckabee Sanders signed a law enacted during a special legislative session in September that shields certain state officials’ security records from public access. The group also reacted to Sanders advocating for several more exemptions to the FOIA that met bipartisan pushback and did not advance in the Legislature.
David Couch, an attorney on ACT’s drafting committee, said the group not only would resubmit the proposed act to Griffin with the requested change but also hopes to start collecting signatures for the amendment next week.
Proposed acts require 72,563 signatures from registered voters by July 5 in order to appear on the November ballot. Proposed amendments require 90,704 signatures.
A primary goal of the proposed act, the drafters have said, is to codify a definition of a “public meeting” and broaden the legal definitions of a “governing body” and “communication” among members of government bodies.
The proposal would also define “cybersecurity,” “government transparency,” “minority party,” and “public notice.” Griffin wrote in his first rejection of the proposed amendment in December that ACT needed to define “government transparency”; subsequent proposed ballot language defines the term as “the government’s obligation to share information with citizens.”
The proposed statutory changes would also:
- Protect citizens’ right to appeal FOIA decisions and collect any resulting attorneys’ fees.
- Create the Arkansas Government Transparency Commission, with members appointed by state elected officials, to help citizens enforce their rights to obtain public records and observe public meetings.
- Create stiffer civil penalties for violating the FOIA.
- Repeal Act 883 of 2023, which allows Arkansas school boards more reasons to go into executive session and allows more people to have closed-door meetings with school board members.
- 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.
Griffin took issue with the language in the third version of the act that would repeal any law passed by the Legislature after Jan. 1 “if it amends Arkansas law in a manner that reduces government transparency including without limitation … reducing the openness of public meetings, limiting disclosure of public records, or altering the time, place, manner, or medium of public notice.”
This could lead to citizens voting to “support the repeal of a law that does not yet exist” if the measure were on the ballot as submitted, and this is outside the scope of Arkansas Constitutional Amendment 7, which created the ballot initiative process, Griffin wrote in his opinion.
“The set of laws affected by the ‘preemptive repeal’ language in the text of your proposed initiated act would be fluid at the time petitions were circulated and potentially even at the time of voting,” Griffin wrote. “If the ‘preemptive repeal’ language were allowed, voters could unknowingly vote to repeal a law they support or vote not to repeal a law they oppose.”
Meanwhile, ACT’s proposed amendment would not only make government openness a constitutional right but also restrict the Legislature’s ability to limit it.
ACT filed a complaint against Griffin at the Arkansas Supreme Court on Tuesday, seeking certification of the second iteration of the proposed amendment, which Griffin rejected Jan. 8. The second draft was ACT’s preferred version, Couch said Wednesday, and the group will collect signatures for the version that Griffin certified while continuing with the court case.
The Arkansas Advocate is a nonprofit, nonpartisan news organization dedicated to tough, fair daily reporting and investigative journalism that holds public officials accountable and focuses on the relationship between the lives of Arkansans and public policy. Images: Mayberry — Arkansas House of Representatives; Davis — Arkansas Senate; Hester — Batesville School District.
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