Arkansas Attorney General Tim Griffin is scheduled Monday to comment on ballot language for a proposed constitutional amendment to strengthen Arkansas’ Freedom of Information Act.
The proposed amendment is the first part of Arkansas Citizens for Transparency’s two-pronged strategy to strengthen the state’s Sunshine Law.
While most ballot question panels try to convince voters to support or reject a single ballot measure, Citizens for Transparency Arkansas will ask voters to support two proposals — a constitutional amendment and an initiative law — to strengthen the FOIA.
Griffin’s office has until the end of business Monday to accept, reject or rewrite ballot language for the proposed amendment, and until Dec. 18 to do the same for the proposed law.
“I call it principles and policy,” said Nate Bell, a former state lawmaker and president of Arkansas Citizens for Transparency. “Amendment is principles, action is policy.”
Bell is leading the effort with Little Rock attorney David Koch, a seasoned activist who wrote the Arkansas state constitutional amendments that legalized medical marijuana and raised the minimum wage.
Once the ballot language is approved, the group will have until four months before the 2024 general election to collect 90,804 signatures on the proposed amendment and 72,563 signatures on the proposed law. The Attorney General has 10 business days to accept, reject or rewrite the ballot language.
The group submitted the constitutional amendment to the Attorney General’s Office on November 27 and introduced the law it initiated on December 4.
Putting the group’s entire plan to strengthen the FOIA into a proposed constitutional amendment would likely not win approval from the attorney general’s office, which must first sign off on ballot language before groups can begin collecting signatures for their petition, Koch said. So, instead, the group settled on a shorter constitutional amendment, and a law that began with more detail.
“First of all, it would have to be a very long and complex and comprehensive document, which, you know, probably shouldn’t really be in the Constitution,” Koch said. “The Constitution should be merely general principles.”
The proposed constitutional amendment the group submitted last month to the Attorney General’s Office outlines the group’s broad goals, such as giving Arkansans a constitutional right to government transparency and their right to sue the government if it fails to adhere to the Sunshine Law.
The proposed constitutional amendment would make it more difficult for the General Assembly to change the Freedom of Information Act. If the state Legislature wants to make the sunshine law less transparent, two-thirds of lawmakers in both chambers would have to approve the change, which would take effect only after voters sign off through a referendum in the next general election.
If an immediate change to the FOIA is needed, nine-tenths of lawmakers in both chambers would have to approve the change, which would take effect immediately upon its passage. However, voters will get a chance to veto and overturn the law through a referendum in the next general election.
The proposed law also includes more specific amendments to the Arkansas Freedom of Information Act, such as:
Create a commission, which will be called the Arkansas Transparency Commission, to help citizens obtain public records.
Definition of a general meeting as a meeting of members of an elected body to discuss public affairs.
Repeal Law No. 883 of 2023, which allows school boards to meet in executive sessions to discuss legal matters.
Determine when public bodies are permitted to meet behind closed doors to discuss cybersecurity matters.
Giving courts the ability to assess civil penalties against government agencies that do not lawfully comply with a records request.
Allowing litigants to recover legal fees if the court finds that they “substantially prevailed” in their lawsuit.
“When this passes, Arkansas will look good to the national public for once about something,” Koch said. “I am tired of being harassed and kicked in the national press with all kinds of shenanigans in which our General Assembly and our Governor participate.”
Joey McCutchen, a Fort Smith attorney and advocate for the state’s Sunshine Law, said he appreciated the group for defining what an open meeting means. Although not part of Arkansas Citizens for Transparency, McCutchen participated in public meetings the group held across the state as it crafted its proposals.
“I probably looked at it skeptically at first, but I think it’s probably the right thing to do,” McCutcheon said of the group’s strategy.
The Arkansas Transparency Commission will consist of five members, three appointed by the Arkansas Supreme Court and one each appointed by the Senate President Pro Tempore and Speaker of the House.
The committee will have the authority to issue advisory opinions, conduct transparency audits, direct government officials to comply with records requests and issue disciplinary actions for noncompliance, including filing lawsuits to make government officials comply with records requests.
Scott Trotter, an attorney who has drafted several constitutional amendments and initiated actions, including the law that created the Arkansas Ethics Commission, said he anticipates problems facing the proposed transparency commission.
Trotter said he believes it would be difficult to write ballot language to create a complex commission in a law that began to cover a number of issues, which could result in the attorney general rejecting the ballot title or filing a lawsuit to strike the law from the ballot.
“The powers of this new transparency committee will be very substantive, very comprehensive in their authority in what they can do to achieve implementation,” Trotter said. “This enforcement function and authority is far greater than the Arkansas Ethics Commission has ever had.”
Trotter said he also has concerns that the proposed law would give the Arkansas Supreme Court the power to appoint three of the five seats on the transparency commission. He said that could lead to a separation of powers issue, where the court chooses members of the executive arm.
“It occurs to me that it is certainly questionable whether the Arkansas Supreme Court will ultimately accept the idea of being responsible for appointing the majority of this transparency commission, and whether they believe this is an appropriate exercise of power by the Arkansas Supreme Court,” Trotter said. .
The campaign to strengthen the Freedom of Information Act began during a special session called by Governor Sarah Huckabee Sanders in September, in which the Republican governor proposed sweeping reforms to the state’s sunlight law. The hearing came after attorney and blogger Matt Campbell requested communications and records regarding Arkansas State Police expenses related to the security of the governor and First Gen. Brian Sanders.
The governor said the state’s Freedom of Information Act, which dates back to 1967, is outdated and needs changes to make the government more efficient and to protect records related to the governor’s security detail.
After receiving significant bipartisan opposition from the public, Sanders and the General Assembly approved a mini-law that exempts “records that reflect the planning or provision of security services provided” to state constitutional officers.
The proposed amendment would make security-related records vulnerable to disclosure within three months.
“So what we did there is we said, ‘Look, there’s a presumption after 90 days that the registry is no longer necessary for security,'” Bell said. “And if in fact it is necessary for security, you know, the keeper of that record has the right to petition a judge to keep that record sealed and it can remain in place for up to two years.”
Following the special session, a coalition of journalists, activists and lawyers began holding a series of meetings to work on a constitutional amendment that they said would strengthen the Freedom of Information Act.
“I think when the citizens saw that the government was going to eliminate the FOIA, the public rose up and said it wouldn’t happen on our watch,” McCutchen said. “This was a broad coalition of conservatives, liberals, Democrats and Republicans coming together in the name of freedom, in my opinion.”
As the deadline approaches for a decision on the ballot language for the proposed constitutional amendment regarding the Arkansas Open Records Law, the stakes are high for both supporters and opponents of the measure. The amendment seeks to make changes to the state’s open records law, and the language used on the ballot will play a crucial role in shaping public opinion and ultimately determining the fate of the amendment. With the clock ticking, stakeholders are closely watching the decision-making process, knowing that the outcome will have far-reaching implications for transparency and access to government information in Arkansas.