Lawmakers end 2017 with press-opposed changes to state’s 50-year FOIA law

The Arkansas House of Representatives on Friday (March 31) unanimously and ceremoniously approved a bill that the Democratic and Republican sponsors said was intended to strengthen the state’s Freedom of Information Act (FOIA), signed into law almost exactly 50 years ago by Gov. Winthrop Rockefeller.

But House Bill 1946 was only approved after Reps. Clarke Tucker of Little Rock and Bob Ballinger of Hindsville admitted on the House floor that the bill had little chance of being enacted into law as the 91st General Assembly winds down the final day of the session today.

“As a practical matter, as we near the end of the session, this is not going to make it through the legislative process. To be frank, that is probably OK because it probably needs to be fleshed out a little bit with some of the stakeholders,” Tucker said on the House floor last week.

The legislation, approved in a vote of 92-0, died Monday (April 3) in the Senate Committee on State Agencies and Governmental Affairs. For many FOIA supporters and open records advocates, the Legislature’s pretense of supporting government transparency and freedom of information stand in contrast to the dozens of bills filed during the session that some say will take the legs out from under what is generally acclaimed as one of the strongest state open records acts in the nation.

Senate President Pro Tempore Jonathan Dismang, R-Searcy, said there could have been a better discussion during the 91st General Assembly about what actually needed to happen versus “kind of what people wanted to happen in regards to the FOI law.”

“In hindsight, everybody that was working on an FOI issue was kind of working independently, and over time, regardless of the merit of whatever that piece of legislation was, because of the volume and the fact that there was no coordination to make sure to see how these pieces work together, that could have gone better in this session,” said the Senate leader.

STATE FOIA SUFFERS ‘DEATH OF A THOUSAND CUTS’
Tucker, considered one of the legislature’s strongest FOIA advocates, said he doesn’t believe there was an organized effort by the legislature to weaken the state’s 50-year old FOIA, despite appearances. He said House Speaker Jeremy Gillam, R-Judsonia, responded admirably to the unprecedented rush of FOIA bills in the 2017 session.

“To the Speaker’s credit, he has actually bottled most of the FOIA bills (together),” Tucker said. “Unfortunately, as we get toward the end of the session, we may have killed the FOIA (law) by a death of a thousand cuts and didn’t realize it.”

According to a Talk Business & Politics analysis of bill filings by the 91st General Assembly, more than 80 bills were introduced during the session that intended to revise or make exemptions to state FOI regulations. Of that total, nearly three dozen passed into law, some with perceived hostile intent. That perceived hostility was noted in a weekly newsletter sent by Arkansas Press Association Executive Director Tom Larimer to the association’s member newspapers and journalists in early February, highlighting Gov. Asa Hutchinson’s signing of a proclamation naming “Freedom of Information Act Day” on Valentine’s Day (Feb. 14) on the 50th anniversary of the law.

“Several bills have been filed seeking to amend the FOIA in this session. Some would create gaping holes in the law seriously limiting its usefulness to the people of Arkansas,” Larimer wrote.

Larimer also noted the irony in Hutchinson choosing to sign the FOIA Day proclamation in a ceremony closed to the press or public. He speculated that the governor did not want it to be seen as influencing pending legislation amending the FOIA now being considered at the legislature.

“When I asked for the governor to sign a proclamation for us, I thought he would think it was a good idea to be identified with the now 50-year-old law. Apparently showing support for the FOIA is not politically correct for the time being. Hopefully, that’s just a temporary situation,” Larimer said.

BILLS FILED TO SEAL STATE RECORDS, PUBLIC DOCUMENTS
Since the 2017 session began on Jan. 9, there have been more than 50 bills filed during the session that would seal state records and documents dealing with charter schools, child abuse, prisons, concealed carry permits, economic development data and law enforcement. There was also a flood of filings that sought to put more law enforcement documents and records, including police videos and recording devices, under state seal.

Altogether, most of the FOIA-related bills were taken up late in the session and signed into law after March 6, the filing deadline for the 2017 legislative session. For example, House Bills 1469 and 1236 – which exempts records from public view that depict the death of law enforcement officers and certain aspects of the Department of Correction’s emergency preparedness plans – were signed by Gov. Hutchinson into law on March 6th and 20th as Acts 376 and 531, respectively.

Other key FOIA-related measures that have drawn criticism from APA officials and open records supporters were Senate Bills 12 and 131, both exemptions requested by state higher education officials and sponsored by Sen. Gary Stubblefield, R-Branch. Under SB 12, any emergency, security records, or other information related to public safety at state-supported schools and universities would be exempt from state FOIA disclosure. Stubblefield’s legislation, now Act 541, would also exempt from the state FOIA any records or “other information” related to the personal information of licensed security and school resource officers, or other security personnel involved in public safety at Arkansas schools, colleges and universities.

“We live in a totally different world than we did 50 years ago,” Stubblefield told fellow lawmakers in the Senate. “We have to do things that we wouldn’t have dreamed of 50 years ago.”

Although Stubblefield said in committee and on the Senate floor there was no opposition to his bill, Larimer said the Republican lawmaker broke a “handshake deal” to not run his bill when he realized press representatives would not be able to attend a Senate committee meeting.

Stubblefield’s SB131 creates an FOIA exemption for the security operations, emergency procedures and personnel information of the State Capitol Police. That bill, now Act 474, was also opposed by the APA. Both of Stubblefield’s bills were signed by Gov. Hutchinson on March 20.

To the APA’s credit, more than half of the FOIA “hostile” bills were withdrawn by the sponsor or died in committee due to lack of support. Still, a flurry of bills introduced after the March 6 filing deadline were approved by the legislature in the final days of the session and are now headed to the governor’s desk.

For example, House Bill 1623 is one of several FOIA related bills sponsored by Rep. Bob Johnson, D-Jacksonville, dealing with so-called “over burdensome” FOIA requests from journalists and citizens. In a House committee hearing, Johnson and Pulaski County officials said state and local government offices that handle public documents were being overwhelmed by voluminous FOIA requests.

Under HB1623, state local and state agencies and boards now may post public documents on the internet as a sufficient response to a FOIA records request, unless the requestor specifies those records in another format. Johnson’s bill was passed by both the House and Senate in the final days of the session, along with at least seven other FOIA exempting seeking proposals.

‘FOIA FRIENDLY’ BILLS STALL IN COMMITTEE, MOSTLY SYMBOLIC
To its credit, the Legislature did take up a handful of FOIA friendly bills that garnered the APA’s support. Still, Tucker’s HB1946 died in Senate committee and HB1225, by Rep. Stephen Magie, D-Conway, was withdrawn from a House panel on March 23. That bill would have repealed 2015 legislation by former Rep. Micah Neal that sealed restaurant and hotel sales records. Earlier this year, Neal pleaded guilty to one count of conspiracy to commit honest services fraud in a federal case related to Arkansas’ General Improvement Fund appropriations.

Two other bills by Rep. Laurie Rushing, R-Hot Springs, were mostly symbolic measures that don’t carry the impact of law. House Resolution 1024 by the Garland and Hot Springs County Republican designates Feb. 14 as “Freedom of Information” Day in Arkansas.

Rushing’s HB2132 would create a nine-member Freedom of Information Task Force to evaluate and recommend changes to the state FOIA act. The task force would begin meeting in November in each “even-numbered year” before a regular legislative session and would complete a study of proposed exemptions for the general assembly.

Besides appointments by the sitting governor, House Speaker and President Pro Tempore, the APA, the Arkansas Freedom of Information Coalition, state chapter of the Society of Professional Journalists and the Arkansas Broadcasters Association would also appoint members to the panel.

Rushing’s bill, however, did not get broad support from the legislature. It barely was approved by the House in a vote of 58-11, with 25 members not voting and six members present. In the Senate, it was approved unanimously by a vote of 34-0. Rep. Bryan King, R-Green Forest, did not vote.