Proposed changes to Arkansas FOIA slowed as legislators negotiate with Governor’s office

An effort to push through significant changes to Arkansas’ Freedom of Information Act floundered Monday (Sept. 11) as some legislators appeared to balk at Republican Gov. Sarah Sanders’ plan to “modernize” what is considered the best government transparency law in the country.

The proposed bill, sponsored in the House by Rep. David Ray, R-Maumelle, and in the Senate by Sen. Scott Flippo, R-Bull Shoals, would significantly limit the information available about the deliberations of officials at state agencies, recommendations about policy, and other governance matters. The proposed law also would effectively make it almost impossible for an attorney or individual winning a claim for a FOIA violation to recover attorney fees and other reasonable expenses. The legislation also has a “retroactivity clause” that would qualify new exemptions to FOIA for requests dating back to Jan. 1, 2022.

The proposed 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.”

Sanders on Friday alleged in a Friday press conference announcing the Special Session that the FOIA is being “weaponized” to “slow down our bold conservative agenda” and to place her family’s safety in jeopardy. She also said the existing law could be used to obtain sensitive government documents. She pushed back against claims the proposed bill would “gut” the state’s FOIA, saying the changes mirror federal document access laws. She said the proposed changes would make government more efficient while preserving transparency.

Procedural efforts in the House and Senate Monday morning to send Senate Bill 7 – the FOIA bill – to committees failed. Several sources told Talk Business & Politics that House and Senate leaders were negotiating with the governor’s office to remove language related to deliberations among state agencies, while retaining the security provisions. The sources said legislators had over the weekend received pressure from various groups opposed to the FOIA changes, and the bill in its proposed form no longer had enough votes for approval.

Several groups, including the Arkansas Public Policy Panel, Democratic Party of Arkansas, Libertarian Party of Arkansas, Conduit for Action, Americans for Prosperity, Arkansas Press Association, Society of Professional Journalists, and even the Republican Party of Benton County and the Republican Party of Saline County, were active in opposing the proposed FOIA changes. Members of those groups and others opposing the FOIA changes filled the House and Senate galleries.

“For all intents and purposes, this bill will eliminate the ability to hold our government accountable by shielding processes that provide essential context for decisions that affect millions of Arkansans. There must be transparency in government processes and accountability as to how taxpayer dollars are spent,” the Arkansas Press Association noted in a statement.

The Monday morning private negotiations between legislators and the governor’s office extended into Monday afternoon. The House would eventually recess until Tuesday morning. When the Senate convened after 3 p.m., Sen. Bart Hester, R-Cave Springs and Senate president, said work was continuing on an amended bill, and he was not sure when the Senate would see a new bill or an amended SB 7. Once the new or amended bill is presented to the Senate, it would immediately go to a committee for consideration, Hester said.

Sen. Stephanie Flowers, D-Pine Bluff, and Sen. Bryan King, R-Green Forest, asked Hester to delay committee action until Tuesday. Flowers argued that legislators and the public should have more time than just a few minutes to review a new or amended bill. Hester said even if it is “a brand new bill,” it would only have “slight changes.”

“This is unbelievable,” King responded when Hester again refused to delay committee consideration until Tuesday.

Hester reconvened the Senate around 5:15 p.m. to say a new bill would be submitted and a State Agencies committee meeting would be held that night, but a committee vote on the bill would not happen until Tuesday morning. As of 6 p.m., no new or amended legislation had been filed in the Senate.

Lawmakers did advance a bill out of the Senate Revenue & Tax Committee that will cut personal and corporate income tax rates by 0.3% to 4.4% and 4.8%, respectively. The personal income tax cut would reduce revenue by $150 million, and the corporate tax cut would reduce revenue by around $35 million.

Part of the tax changes that advanced today also include a tax credit of $150 to an estimated 1 million lower-income Arkansans, or $300 for a qualifying couple. The credit will have an estimated one-time cost of $105 million.