AG Griffin rejects FOIA initiated acts, education amendment

A day after rejecting four proposed constitutional amendments affecting the state’s Freedom of Information Act (FOIA), Attorney General Tim Griffin on Tuesday (Jan. 9) also rejected four initiated act proposals tied to FOIA as well as a proposed education amendment.

Arkansas Citizens for Transparency, the advocacy group seeking to get the FOIA measures on the November 2024 ballot were stymied again by Griffin, who cited problems with the four proposals.

“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 problem,” he said.

“The current version of your proposed text, like the prior version addressed in Opinion No. 2023-116, would create an exemption from the FOIA’s disclosure requirements for certain records of private citizens. Under the FOIA as it exists today, a public record that qualifies as a personnel record of a public official or employee is exempt from disclosure only when its disclosure would constitute a “clearly unwarranted invasion of personal privacy.” The earlier version of Section 4 of your proposal would have applied that test to the disclosure of private citizens’ information that finds its way into government records. In Opinion No. 2023-116, I noted that the earlier version of Section 4 was ambiguous in two ways. You have now resolved this specific issue, but you have done so in a way that creates a new law that is almost certainly not your intent and that is in conflict with your ballot title’s summary,” Griffin added.

Arkansas Citizens for Transparency said early Tuesday evening it has already resubmitted a revised version of the proposal for the AG’s review.

“In his rejection of the initiated act to maintain and strengthen government transparency in Arkansas, the Attorney General cited a single issue presented in Sections 3 and 4 of the proposed language. Within hours of receiving today’s opinion, our group resubmitted a revised version of the act with sections 3 and 4 deleted in their entirety,” the group said. “Given these sections were the only noted concerns, there is now no legitimate reason for the Attorney General to take any action but to approve, and to do so quickly, the ballot measure that now sits in his office.”

On Tuesday, Griffin also sent a rejection letter to the leadership of For AR Kids, a ballot advocacy group seeking to place a constitutional amendment on the ballot that would address public and private schools and aspects of Gov. Sarah Sanders’ LEARNS Act.

The “Educational rights amendment” would require private schools to adhere to public school standards for purposes of receiving state money through the LEARNS Act’s education freedom accounts.

The proposed amendment would also require:

• Universal access to voluntary, early childhood education for students three years old until they qualify for Kindergarten;
• Universal access to voluntary afterschool and summer programs necessary for the achievement of an adequate education;
• Assistance to children who are within 200% of the federal poverty line “so that the qualifying children can achieve an adequate education and overcome the negative impact of poverty” on education; and
• Services that fully meet the individualized needs of students with disabilities “to allow them
  meaningful access to integrated education.”

In rejecting the proposal, Griffin said the group’s ballot title was problematic.

“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 problems in the text of your proposed measure, nearly all of which are imported into your ballot title:

Unconstitutional provision. The first section of your proposed measure is misnumbered as Section 5. For clarity, I will refer to the first Section 5 as Section 1. Sections 1 and 2 of your proposal apply “identical State academic standards” and “identical State standards for accreditation” to all schools receiving local or state funds. Many parochial schools provide religious instruction as part of their academic curriculum. If enacted, your proposal would prevent parochial schools from offering that instruction. This limitation would violate the First Amendment.

Lack of clarity on key terms. Your proposed text includes key terms that are vague or ambiguous. The lack of clarity on these key terms prevents me (1) from ensuring that your ballot title does not mislead by amplification or omission and (2) from substituting and certifying a more appropriate ballot title.”

Griffin also said the definition of “adequate education” was “exceedingly vague” and he noted there were typos and probable impacts on existing laws not clearly described in the constitutional amendment draft.

“While we are disheartened by this setback, it doesn’t diminish our commitment to enhancing education for all Arkansans. We will regroup, reassess, and continue our mission to advocate for positive change in our state’s educational landscape,” said Steve Grappe, Executive Director of CAPES and spokesperson for the initiative.

Before any ballot question committee can circulate petitions for signature to attempt to get a citizen-led measure on the ballot, it must first receive ballot title approval from the Attorney General’s office.