Consensus elusive on changes to Arkansas’ FOIA; lengthy Senate hearing ends without a vote (Updated)

by Michael Tilley ([email protected]) 1,030 views 

Sen. Bart Hester, R-Cave Springs and Senate president, presents SB 9 to the State Agencies and Governmental Affairs Committee.

Editor’s Note: This story is updated to reflect that a bill was filed late Tuesday (Sept. 12) in the Senate that removed many key objections raised by Freedom of Information Act advocates.

The struggle continues in the Arkansas Senate to come up with proposed Freedom of Information Act changes that will placate Gov. Sarah Sanders on one side and FOIA advocates on the other.

That struggle included a more than five-hour Senate committee hearing Tuesday (Sept. 12) on a new bill that had minor changes compared with the original proposal that was pulled Monday after public opposition caused some legislators to withdraw support.

Gov. Sarah Sanders wanted a bill that would change FOIA provisions by including the federal exemption that would significantly limit the information available about the deliberations of officials at state agencies, recommendations about policy, and other governance matters. The original bill would also exempt from FOIA any records about “planning or provision of security services provided to the Governor, the Lieutenant Governor, the Attorney General, the Secretary of State, the Auditor of State, the Treasurer of State, the Commissioner of State Lands, members of the General Assembly, Justices of the Supreme Court, or Judges of the Court of Appeals.”

A new bill filed late Monday – Senate Bill 9 – by Sen. Bart Hester, R-Cave Springs and Senate president, and Rep. David Ray, R-Maumelle, retained the security provisions language of the original bill. However, the broad federal exemption was removed and replaced with language that would exempt communications between the governor’s office and cabinet secretaries, and certain documents under a “plausible threat of litigation …” (Link here for a PDF of SB 9.)

“Records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department; Records prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission for use in litigation that is: (A) Pending; or (B)(i) Anticipated in light of a plausible threat of litigation that has been documented in writing,” noted the lawsuit.

The new bill also makes the exemptions retroactive to June 1, 2022. The previous bill had the retroactive provision at Jan. 1, 2022.

Hester and Courtney Kennedy, chief legal counsel for the governor’s office, opened the hearing in the State Agencies and Governmental Affairs Committee by explaining the merits of the SB 9. While on Monday Hester said the new bill would only have “slight changes,” on Tuesday he said the new bill is “drastically different” from the previous bill. Hester said security provisions in the bill are “critically important” and will “prevent people from discovering patterns” the Arkansas State Police (ASP) uses to protect the governor and first family.

He also said language blocking some communications between the governor’s office and state agencies allows the officials, for example, to respond in times of emergencies without having to worry about FOIA requests. Hester said the attorney-client language prevents the state from having to disclose sensitive materials during a lawsuit.

“That puts us at a completely unfair advantage,” he said.

Sen. Clarke Tucker, D-Little Rock, said the security provision is needed now, but other provisions can wait until a regular session in 2025 so they can be better vetted by lawyers and FOIA experts. Tucker also said he is concerned with the word “reflecting” in the bill that could broaden the documents that are blocked from FOIA requests.

Kennedy said “reflecting” is standard and protects all sensitive agency discussions while also allowing for public access to documents. Tucker pushed back, saying the language has the potential to be misapplied by attorneys, future governors and cabinet secretaries. Tucker said Hester and Kennedy’s interpretation won’t matter when a future judge is asked to decide what “reflecting” means.

Tucker also said the proposed bill is “very problematic” because it could broaden what documents could be exempt under attorney-client privilege; “very problematic.” He said lawsuits are the only real enforcement mechanism of FOIA, and if attorney fees are blocked, the incentive to enforce FOIA is lost.

“My concern here is about access to justice,” Tucker said.

The only supporters of the proposed bill during the more than five-hour hearing were state officials, and they only spoke to the security needs of the governor’s office. For example, Mike Hagar, secretary of Public Safety and ASP director, said existing FOIA law needs clarified because it has too much gray area that allows “activist bloggers” to try and embarrass the governor or find political leverage. The activist blogger comment was a reference to Little Rock attorney Matt Campbell, owner of the Blue Hog Report, that has filed a lawsuit against the ASP for failing to provide records related to Gov. Sanders’ use of the state airplane.

Hagar said such bloggers are not a threat to the governor, but the info they collect and disseminate could be used to harm the governor.

Following are a few key parts of testimony from those who oppose SB 9.

• Robert Steinbuch, a University of Arkansas at Little Rock (UALR) law professor and member of the Arkansas FOIA Task Force, said provisions in the new law block attorney fees unless the plaintiff can show the government actions were arbitrary or in bad faith.

“It’s not a hill. It’s a mountain. It’s Everest to overcome. … It’s virtually impossible to prove,” Steinbuch said of the arbitrary and bad faith provisions.

• Jennifer Lancaster, an attorney and member of the Saline County Republican Party, said the bill is “an assault on our republic.” She said if the legislators and governor’s office are truly concerned about security, they would have proposed a “narrowly” focused bill and not add in the other document provisions.

“Quit trying to mislead we the people. We’re much smarter than you give us credit for,” she said.

• Joey McCutchen, an attorney and co-founder of the Arkansas Transparency In Government Group, also said attorney-client privilege rules in the proposed bill are essentially a “cc (carbon copy) your government lawyer” rule that will be used broadly to block access to public documents.

“This attorney client privilege can and will be abused. There is no question,” McCutchen said, adding later, “If you’re doing something embarrassing or illegal, all you have to do is copy your attorney.”

Sen. Blake Johnson, R-Corning, and chair of the committee, took issue with McCutchen’s testimony and cut him off.

• UALR law professor Joshua Silverstein said he does not like to use “the sky is falling rhetoric,” but the attorney-client privilege will impact FOIA because it would “dramatically decrease the incentive for governments to reply to FOIA requests.” Silverstein also outlined several existing laws that already provide for state agency protection and penalties against lawyers who try to abuse legal fees related to FOIA claims.

In a surprise to many onlookers, the committee hearing ended without a vote on the bill. The Senate is expected to reconvene Wednesday morning at 9 a.m.

At 7 p.m. Tuesday Sen. Hester filed Senate Bill 10, which removed all previous proposed provisions except for language related to the security of the governor and First Family. Link here for a PDF of SB 10.