AG Griffin rejects four FOIA amendment proposals; new proposal filed

In an attempt to provide options for approval of a Freedom of Information Act constitutional amendment, a ballot initiative group submitted four proposals to Attorney General Tim Griffin who rejected all of them on Monday (Jan. 8).

Griffin issued a letter explaining his determination on Monday telling leaders of Arkansas Citizens for Transparency that their proposed constitutional amendments had three consistent problems.

“Having reviewed the text of your proposed constitutional amendment, as well as your proposed popular name and ballot title, I must reject your popular name and ballot title due to the following three sets of problems,” Griffin wrote.

He noted a “continued failure to clarify key terms,” “continued failure to include the full text,” and a “disconnect between the ballot title and text” in all four submissions.

Arkansas Citizens for Transparency has put forth a constitutional amendment and initiated act to:

• Create an Arkansas citizen’s right to government transparency;
• Require a law making government business less transparent to pass through approval by the people of Arkansas; and
• Allow the state of Arkansas to be sued in state court for failure to comply with Arkansas government transparency laws.

David Couch, an attorney working on the FOIA effort, provided this statement to Talk Business & Politics regarding Griffin’s rejection of the latest four proposals.

“It’s clear that the Attorney General believes that he has the statutory authority to require the people to write a proposed constitutional amendment in the way he wants it written and not the way the people want it. The people’s right is guaranteed by the constitution which cannot be overridden by a statute. We will take all steps necessary to protect the people’s right to the initiative process,” Couch said.

The letter Griffin issued offered the following explanations for some of the rejections.

• Continued failure to clarify key terms. In Opinion No. 2023-113, I said that your “proposed text hinges on terms that are undefined and whose definitions would likely give voters serious ground for reflection.” I provided three examples of this issue. While you have attempted to resolve one of those issues, you have not even attempted to resolve the other two.

• Continued failure to include the full text. Like the earlier version of your proposed text, the foregoing problems are themselves the result of a larger underlying problem: the lack of the full text of the proposed measure. In Opinion No. 2023-113, I extensively discussed the constitutional and statutory requirement that the proposed measure contain the “full text.” Like the earlier version of your proposal, the current version appears to be an attempt to incorporate key provisions of the FOIA into the constitution by referencing the FOIA’s key terms without explicitly citing the FOIA or setting out the definitions of those terms. In Opinion No. 2023-113, I explained why this approach violates the full-text requirement.

• Disconnect between the ballot title and text. In an attempt to summarize your proposed text, your ballot title includes the following clause: “requiring that public officers conduct government business in a manner that is open to Arkansans in access to public records, conduct of public meetings, and issuance of public notice.” I cannot find anything in the text of your proposed amendment that establishes such a requirement. Perhaps this language in the ballot title is an unintentional holdover from the first version of your proposal, which clearly did include that requirement. You summarized that requirement in the exact same language quoted above. On page eight of Opinion No. 2023-113, I noted that the requirement would seem to repeal all discretionary exemptions under the FOIA for meetings and records. The current version of your proposed text does not contain the earlier requirement. So it is possible that you removed the language from the text but forgot to remove it from the ballot title. It is also possible that you believe the requirement is established somewhere else in your proposed text, although not as explicitly as you did in your first proposal.

“Since the foregoing problems are grounded in the proposed text, and I am not authorized to modify the text of proposed measures, I cannot resolve the problems for you. Nevertheless, nearly all the problems I have identified in your current proposal are the same as the prior version. Please ensure that legal infirmities raised in an opinion are addressed before resubmission,” Griffin added.

UPDATE: Arkansas Citizens for Transparency submitted a new proposal late Monday in response to Griffin’s rejection of the four initiatives. You can read the latest version here and here.