Hopes and fears of the FOIA review

When the Attorney General’s Freedom of Information Act (FOIA) working group meets to “modernize” and “balance” FOIA, I hope they appreciate that “We the People” established the government, and therefore, the people are the Sovereign and the government is their servant.

I am unapologetically a defender of the Constitution of the State of Arkansas of 1874, particularly Article 2 – Declaration of Rights. Article 2, Section 1 establishes the power in the people. Article 2, Section 2 leaves no doubt that the government was created to protect the Rights of the people, not deny them. The remainder of Article 2 sets out our “inherent and inalienable” rights.

Likewise, I am unapologetically a defender of the Arkansas Freedom of Information Act, the People’s Law. AFOIA clearly placed the power in the People in the tradition of the 1874 Arkansas Constitution. The AFOIA protects the people’s “right to know” about the government’s business. The AFOIA protects open records, open meetings, and open government for all Arkansas Citizens. As the 1967 legislative intent declared: “it is vital to a Democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.”

Bottom line, our 1874 Arkansas Constitution and AFOIA promote, preserve, and protect Freedom and public liberty. As Patrick Henry stated, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.”

So, when Attorney General Tim Griffin announced the creation of a FOIA Review Working Group to “modernize” and “balance” what some consider the strongest FOIA in the entire country, many met the announcement with skepticism. Many believe “modernizing” and “balancing” FOIA might be code for weakening FOIA. This was especially true since AG Griffin announced that the working group would meet behind closed doors, outside of public view, to “modernize” and “balance” our sunshine law.

Furthermore, the announcement came on the heels of what many sunshine experts called the biggest attack on AFOIA in a legislative session since Republican Gov. Winthrop Rockefeller passed what he called his “crowning achievement” in the 1967 Democrat-led legislative session. But, we must give the working group the benefit of our doubt.

It is no understatement that when the FOIA Review Working Group begins meeting in early September, they are charged with an awesome responsibility to protect our liberty and our “Right to know.” Arkansans will be watching and guarding with “jealous attention” – even if kept outside the room. I have hopes and, yes, fears.

My hope is that the gold standard for any change to AFOIA is the 1967 legislative intent. My fear is that the group will instead promote “government efficiency” over our “right to know.” Some members of the 2023 legislature parroted “government efficiency” when they voted for an open-meeting bill (HB 1601) which would have allowed 1/3 of quorum court members to meet in secret when deciding multi-million projects, or 1/3 of your school board members to meet in secret to discuss child sexual assaults or mask mandates.

My hope is any open meeting law is clear, precise, and promotes meetings conducted in an open and public manner. In this regard, only one definition for a meeting is possible: “Two or more members of a governing body shall neither discuss, deliberate or decide public business in circumvention of the spirit of open meetings.”

My hope is the group has the wisdom and courage to understand that allowing and encouraging members of a governing body to secretly discuss public business on text message or email chains, or in the back of McDonald’s, is contrary to government “of the people, by the people, and for the people.” As Justice Josephine Hart stated in her dissenting opinion in City of Fort Smith v. Wade, “… in the case before us, the email group was established to discuss public business, which the directors obviously did. Today’s majority opinion denies the electorate in Fort Smith insight into the performance of its elected officials and allows those public officials to make their decisions in secret. Secrecy is poison to democracy. On this point, I respectfully dissent.”

My fear is even well-meaning FOIA advocates will compromise away our “right to know” in what is undoubtedly a legislative and bureaucratic environment perceived to be hostile toward open government. As Rep. Richard Womack, R-Arkadelphia, noted, government employees – who benefit from reduced government transparency – were the only folks testifying in favor of an anti-open records bill last session.

My hope is public records will continue to be produced free of charge to their owners, the tax-paying citizens of Arkansas. My hope is records will continue to be produced by our government servants immediately or within three working days. My fear is that because of a few bad apples, the working group will advocate charging us for the records we already own. A bill in the 2023 legislative session attempted to do just that. My fear is simply showing a document to a government lawyer would exempt that document from disclosure under FOIA. My fear is that the working group will also extend the time required to produce public records for the same short-sighted reason – “government efficiency.”

Finally, as Woodrow Wilson said, “Light is the only thing that can sweeten our political atmosphere and open to view the innermost chambers of government.” My hope is the working group remembers that government works for the people. Government belongs to the people. Light will ensure the survival of this maxim.

Editor’s note: Joey McCutchen is an attorney based in Fort Smith and is a co-founder of the Arkansas Transparency In Government Group, which works to protect the Arkansas Freedom of Information Act and to ensure open and transparent government.