Arkansas FOIA needs new balance

I recently announced the formation of my working group to review the Freedom of Information Act and recommend ways to improve it for me to consider including in a future legislative package. On June 25, 2023 — over a year before the working group submits even a single recommendation — this publication put out an editorial entitled “Throwing shade on sunshine laws,” questioning the need for and impugning the motivations of the working group. The editorial makes two mistaken claims to justify this knee-jerk opposition.

I will address the most insulting and frivolous claim first: that the group is suspect from the start simply because it includes members who have previously attempted to reform the FOIA. The group includes three respected legislators: two state senators from different parties, and one state representative; a respected private-practice attorney, who has been an expert in the FOIA for decades; the executive director of the Arkansas Press Association; and two Deputy Attorneys General—one of whom has trained thousands of people on the FOIA. I chose the members based on their experience, knowledge, and the fact that they are known for prioritizing civil discourse. It is true that the group represents different political perspectives and different experiences making and responding to FOIA requests. That is precisely the diversity of opinion that is necessary when trying to find ways to improve the law.

Second, the editorial rejects my argument that FOIA needs updating due to new and emerging technology. The author—waxing poetically about everything from commercial space travel to the war in Ukraine—seems to believe that technology only brings benefits. But to take things back down to Arkansas, consider the ransomware attack leveled against the Little Rock School District late last year. The attack temporarily crippled the district and exposed personal information about teachers and students to malicious actors. LRSD paid nearly $700,000 in taxpayer funds to resolve the dispute. Under the FOIA as it stands today, LRSD’s school board was required to publicly discuss how it planned to deal with the attack and how much money it would be willing to pay the hackers. While it’s certainly easier to cover one’s ears and repeat ominous clichés about sunshine and darkness, I am choosing to work on improving the law to better serve the citizens of those school districts.

The author seems to think that as technology develops, fewer, if any, FOIA changes will be needed. But the fact that technological advances create both solutions and problems was once considered noncontroversial and obvious. The Electronic Records Study Commission—which the legislature formed in 2000 to help shepherd the FOIA into the electronic age—specifically said that the balance struck in 2000 between individual privacy and public access “may need to be reconsidered and re-balanced” due to “emerging technologies.” One of the reasons I’ve formed the working group is to discuss this issue. Yet some consider even having that conversation to be “throwing shade” on the FOIA. This shows how extreme and alarmist many self-professed FOIA guardians actually are.

The editorial concludes by opposing “laws that limit the public’s ability to understand what the government is doing.” This is a loaded way of describing something routine: a FOIA exemption. The FOIA has always had exemptions—from 1967 through the Electronics Records Study Commission through today. These exemptions protect from disclosure things like the identity of undercover police officers, the home addresses of public employees, or personal medical information. Deciding through the democratic process on the appropriate limits of disclosure for public information is not “throwing shade on sunshine laws,” it is doing what every responsible government must do.

Every state —including Arkansas — has had to balance government efficiency and individual privacy on the one hand against public access on the other. While reasonable minds can differ on precisely how to strike that balance, it is unreasonable to claim or imply, as some do, that no such balance is needed. I’m working to improve that balance.

Editor’s note: Attorney General Tim Griffin took office in January 2023 and is serving a four-year term. He is a former Lt. Governor and U.S. Congressman. The opinions expressed are those of the author.