A nonprofit publication of the Kentucky Center for Public Service Journalism

Amye Bensenhaver: Arkansas rebuffs Gov. Sanders’ efforts to upend state’s Freedom of Information Act


It’s doubtful that Arkansas Governor Sarah Huckabee Sanders anticipated the national firestorm she would ignite on September 8 when she called the state’s General Assembly into special session — commencing September 11 — to enact legislation aimed at upending the state law governing the public’s right to know — the Arkansas Freedom of Information Act.

Clearly, she underestimated bipartisan opposition to her anti-transparency agenda, but it was no doubt Republican opposition that caught her off guard.

Sanders’ proposal stumbles out of the gate.

On the first day of the special session, The Washington Post reported that Sanders’ “proposal to restrict the public’s access to records about her administration, travel and security stumbled with lawmakers trying to rework the legislation in the face of growing criticism that it erodes the state’s open records law.”

Amye Bensenhaver

Sanders’ claims that “some are weaponizing FOIA and taking advantage of our laws to hamper state government and enrich themselves. They don’t care about transparency. They want to waste tax payer dollars, slow down our bold conservative agenda” were quickly refuted.
 
Open government proponents responded, “Avoiding public scrutiny is neither bold nor conservative; it’s weak and reactionary. Requiring elected officials to obey the law isn’t ‘weaponizing’ the law.”

As efforts to implement the Governor’s multi-prong attack on the state’s public records law collapsed under the weight of public opinion, Joey McCutchen — founder of the Arkansas Transparency in Government Group — reminded lawmakers, “The power of the people was on display. People from all walks of life — left, right, Democrat, Republican, poor, rich, across the spectrum — came together to talk about the importance of our right to know.”

And at the conclusion of the session, The New York Times wrote:

“In a moment when the country’s politics have become highly polarized, supporters of the legislation, perhaps unwittingly, seemed to run into a rare slice of common ground: distrust of the motives of government officials, and resistance to a plan that would allow them to operate with less scrutiny.”

What remained of the proposal

Less than a week after the special session call, the legislative turmoil subsided, the national focus shifted away from Arkansas, and Sanders quietly signed a stripped down version of her original FOIA proposal.

How much of Sanders’ anti-transparency agenda — masquerading as forward-thinking legislative revision intended to enhance security and improve FOIA efficiency — was enacted into law?

Very little.

The new law — which contained an emergency clause and took immediate effect — is retroactive to June 1, 2022. It creates a new exemption to Arkansas FOIA for records related to the security detail of the governor and constitutional officers. It also requires the Arkansas State Police to file a quarterly report with the General Assembly that provides an overview of their associated expenses.

During her September 8 special session call, Sanders endorsed a bill that included: 

•    A new exemption modeled on the federal deliberative processes exception for records revealing the deliberative process of state agencies, boards, or commissions, including inter-agency and intra-agency memoranda and communications reflecting recommendations and
deliberations “that comprise part of the process by which governmental decisions and policies are formulated.”

•    Records prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission in anticipation of litigation or for use in pending litigation.

•    Records created or received by an elected or appointed state officer, a state employee, or a state agency, board, or commission that would be covered by attorney-client privilege.

•   A provision that would have made it more difficult for requesters to recover attorneys fees and costs when they successfully appeals a public agency’s denial of a FOIA request in court. Under current law, the court must award reasonable attorneys fees and costs to the requester if the requester obtains “a significant or material portion of the public information” in the appeal.

The failed proposal would have authorized the court to award attorneys fees and costs only if the requester “substantially prevailed” or the agency denied the request “arbitrar[ily] or in bad faith.” Critics feared that the higher legal standard would discourage aggrieved requesters from appealing public agency denials in court. 

•    A retroactivity clause back to January 1, 2022. 

Nothing of these proposals remain

But many believe that the original opponents of the bill yielded too quickly on the “security records” component. Few believe that the fight for open government is over in Arkansas. 

A subplot

Perhaps Sanders did envision major blowback from her special session call.

Perhaps she contrived to divert attention from the primary goal of evading accountability for lavish spending of taxpayer dollars on political and personal travel by proposing a legislative package that included multiple jaw dropping subparts to ensure passage of the statutory revision that some believe prompted the special session call: the freedom to come and go on public time and at public expense without public accountability.

Like Florida Governor Ron DeSantis, Sanders emphasized her unique notoriety —  and a corresponding elevated threat level — to justify what was and is, laid bare, an unapologetically anti-transparency agenda.

One thing is certain.

Sanders vowed to continue her war on Arkansas FOIA even as she signed into law the scaled back version of her “bold” and “conservative” FOIA-busting legislation — as well as special session legislation cutting the state’s top individual income tax rate from 4.7% to 4.4% and the corporate rate from 5.1% to 4.8% and legislation prohibiting state and local governments from requiring COVID-19 vaccinations.

“We’re not going to stop continuing to fight for more government efficiency and effectiveness, and I think this is just the beginning of this process,” Sanders said.

She would do well to remember the power of the people to defend their right to know. As one Arkansan testified last week

“I used to think only two things united Democrats and Republicans in this state: love of our mothers and the Razorbacks. But I’m happy to find that their love of FOIA is a third.”

Amye Bensenhaver is a retired assistant attorney general who authored open records and open meetings decisions in that office for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition along with Jennifer P. Brown, former editor of the Kentucky New Era and currently Hoptown Chronicle editor.


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