Freedom of Information Act measure to limit public access to documents fails in committee; meeting exemption passes

A bill that would have limited uses of the Arkansas Freedom of Information Act (FOIA) failed to pass in the House State Agencies & Governmental Affairs Committee on Wednesday (March 29).

Rep. David Ray, R-Maumelle, sponsor of HB1726, explained to committee members the exemptions the bill adds to FOIA laws are needed because current laws are burdensome on state agencies, have been abused, and don’t allow for enough time for agencies to comply with records requests.

“The debate is framed as a binary choice with the government on one side and citizens on the other. You have to pick a side,” Ray said. “It is possible to have both a transparent government and one that isn’t paralyzed by crippling inefficiencies.”

Ray said the volume of FOIA requests can make the job of government more difficult. He added that when the FOIA law was originally passed in 1967 this problem was difficult to foresee.

“It [voluminous FOIA requests] deprives citizens of a government that is providing basic services like public safety and fire protection,” Ray said. “Blowing millions of dollars of taxpayer money on an army of FOIA compliance officers that’ll have to be paid between $60,000 to $100,000 isn’t fiscally conservative.”

Ray said police departments are one of the parts of government that are facing challenges with FOIA requests. His bill would add exemptions for ongoing investigations and police videos involved in investigations. He explained this can lead to unfair trials and innocent people being labeled guilty since everyone under investigation isn’t charged.

During public testimony, Robert Steinbuch, professor at UALR Bowen School of Law and a member of the Arkansas FOIA Task Force, explained there are already exceptions for ongoing police investigations stemming from a U.S. Supreme Court Case.

Jeff Hagar, police chief for the Sherwood Police Department, did reiterate Ray’s point that FOIA requests were a burden on law enforcement.

“The concern I have as an administrator of a police department is the amount of resources I have to put toward the filling of these FOIA requests. We’re not opposed to filling them, but we get so many that are so open-ended that it becomes a strain on our resources,” he said.

Another exception the bill would add is allowing state officials to have privacy when speaking with an attorney for legal advice. Ray said allowing these conversations can give parties who are suing officials an unfair advantage because they would know the officials’ litigation strategy. According to the U.S Department of Justice, this type of privacy is allowed for public officials at the federal level.

Rep. Richard Womack, R-Arkadelphia, asked Ray why the bill doesn’t allow this type of privacy to school boards and cities. Ray responded that it isn’t needed at the lower levels because they don’t receive as much scrutiny as state officials.

HB1726 would also have created exemptions for discussions government officials have regarding cyber security. Ray cited last year’s hack of the Little Rock School District as his reason for including this exemption. He added cyber criminals could use the state’s FOIA laws to get information that could help them hack agencies.

Steve Cobb, city attorney for Sherwood, said it would help if the local government could speak about cyber security in executive session.

“In the budget process for our city, our IT technician wanted to speak to that [cybersecurity] and some vulnerabilities that he perceived may be present in our city and we couldn’t talk about that, except in very vague terms,” he said.

There is also an exception for intellectual property for state universities. Ray said his exemption would protect university research that has monetary value or could give a competitor an unfair advantage. Jim Hudson, chief of staff for the Arkansas Department of Commerce, said providing state government with exemptions on intellectual property would also help recruit industry to the state.

“One of the areas we lag in is venture capital. We don’t see the same level of investment of venture capital as we see in surrounding states,” he said. “If we’re having a conversation with a business that’s a startup, they’re going to be reluctant to give us their proprietary information unless that’s going to be protected.”

Ray also wants to provide an exemption for deliberative process, which is the process by which decisions and policies are formed. He explained that state business needs to be clear but the process doesn’t need to be.

“There’s a chilling effect on the deliberative process. There’s a lack of candor, ideas that maybe fall out of the Overton Window and that aren’t brought forward or brought to the debate. People don’t speak up or offer their input,” he said. “Allowing for that deliberative process improves the decision making, it improves outcomes.”

Ray added that documents crafted during the deliberative process would still be available through subpoenas.

Steinbuch said the deliberative process exemptions are available for constitutional offices like the governor and attorney general but not members of the legislature, because constitutional offices are bureaucrats.

HB1726 also changes the price structure of FOIA requests. Currently, requests are free but the bill would allow the government to charge for requests that take over 8 hours to respond to. Agencies would have the option to either charge eight times the lowest wage of the lowest paid employee in the agency or allow a contractor to handle the request and pricing.

Ray said charging for FOIA requests that are time consuming isn’t unusual. He said that government agencies charge for special use services. Ryan Owsley, deputy attorney for the Arkansas Attorney General’s office, said other states allow fees for FOIA requests and that the bill’s proposal is lenient.

Steinbuch said the 8 hour rule the bill proposes is wrong. He said it would be difficult to decide if a request takes 8 hours or not. He also said if contractors are given the job, there’s a chance they would overcharge for the service. Ray did say that a judge would have to sign off on the parameters of a request that is 8 hours or longer.

Ray’s bill also changes the amount of time the government is given to respond to FOIA requests. Currently it is three business days and the bill would extend it to 10 days.

Owsley, who has worked with agencies on FOIA requests, said larger requests can’t be made within the three days and that can lead to a lawsuit. He added that judges don’t have the legal authority to set a schedule that would give the agency a manageable schedule to fulfill the request. Ray’s bill would provide judges with this type of authority, Owsley said.

Private citizens were in attendance to speak against the bill. Multiple individuals said they were registered Republicans and that the bill goes against having a transparent government.

Scott Gray of the Saline County Republican Party said it is not burdensome for local governments to provide information to citizens. He added that one request usually can be filed on behalf of many people. He said he is against the bill because it would create more doubt with the government.

Ellen Kreth, publisher of the Madison County Record and member of the Arkansas Press Association, spoke against the bill. She said without the current FOIA laws, her newspaper wouldn’t have been able to uncover the Huntsville School District’s inaction to act when notified of sexual abuse on the boys’ basketball team.

The bill failed with only 5 yes votes and 8 no votes. It needed 11 yes votes to advance.

PUBLIC MEETING BILL PASSES
A bill that would amend public meeting laws was passed by the committee.

HB1610, which was sponsored by Rep. Mary Bentley, R-Perryville, declares that meetings with more than one-third of members present, whether formal or informal, shall be considered public meetings. Meetings with fewer members than one-third would not be subject to FOIA. Bentley said this law would protect local officials from lawsuits.

“School board members are not paid and they can get sued if they talk to another member by the folks. We have parts of the state where you can’t even get folks to run for school board,” she said.

In opposition of the bill was Mike Matos, city council member for Vilonia. Matos said this type of law is not needed because city council meetings usually don’t last more than a few minutes when discussing resolutions or ordinances.

Matos said local officials are able to talk to one another about any type of business as long as it in front of the public. He questioned why officials would need that level of secrecy.

Joey McCutchen, an attorney from Fort Smith and member of the Arkansas FOIA Task Force, said he was against the bill and that Bentley didn’t meet with the task force about creating a compromise on the bill.

Samuel Strain, Justice of the Peace for District 4 of Faulkner County, said he is in favor of the bill, because there is an imbalance of power. He explained county judges can speak with justices of the peace in private, but justices of the peace don’t have that ability.

“They can come up with whatever ordinances they want and those of us not in the loop get blindsided,” he said.

The bill will still have to pass in the full House and the Senate before it makes its way to the governor’s desk.

Arkansas’ Freedom of Information Act is considered one of the most transparent and comprehensive in the nation. It was passed in 1967 and signed into law by Gov. Winthrop Rockefeller, the state’s first Republican governor since Reconstruction.

The act guarantees the right of Arkansas citizens to inspect public records and required all public governing bodies to conduct public meetings.