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Arkansas officials’ security records shielded from public under altered FOIA law

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Arkansas officials’ security records shielded from public under altered FOIA law

Sep 14, 2023 | 4:52 pm ET
By Tess Vrbin
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Arkansas officials’ security records shielded from public under altered FOIA law
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Gov. Sarah Huckabee Sanders signs a slew of bills passed during the special legislative session held from Sept. 11-14, 2023, in Little Rock. Sanders signed an FOIA exemption bill and a ban on vaccine mandates, among others, surrounded by the laws' legislative sponsors, on Thursday, Sept. 14. (John Sykes/Arkansas Advocate)

Arkansas Gov. Sarah Huckabee Sanders signed a law Thursday altering the state’s Freedom of Information Act, one of her stated goals of the special legislative session she called for this week.

Senate Bill 10, which passed the Senate on Wednesday and the House on Thursday, shields from public access all records and communications concerning the planning or provision of security services to the governor and other state elected officials. The law went into effect immediately due to its emergency clause.

Proposed FOIA exemptions that did not advance

Lawmakers filed legislation on Friday, the day Gov. Sarah Huckabee Sanders called for a special legislative session, that would have added four exemptions to the Arkansas Freedom of Information Act of 1967.

In addition to records related to security services provided to the governor and other state officials, the initial legislation would have exempted:

  • Records revealing the deliberative process of state agencies, boards, or commissions.
  • 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.

Pushback from the public and from some lawmakers led to the removal of the “deliberative process” exemption from a new bill filed Monday night. The exemption was modeled after a similar clause in other states’ sunshine laws and in the federal FOIA, which has been criticized as easy for public officials to use as an excuse to withhold requested documents.

The second bill traded the deliberative process clause for the exemption of documents reflecting communications between the governor’s office and any cabinet secretary.

Opponents of the second bill said the legislation was better without the deliberative process clause but criticized the remaining exemptions.

Sanders said she thought the four-day special session, which lasted a day longer than originally planned, was “very successful.” Senate President Pro Tempore Bart Hester, R-Cave Springs, and House Speaker Matthew Shepherd, R-El Dorado, echoed this sentiment at a press conference before Sanders signed Senate Bill 10 and several other new laws.

Two earlier versions of the FOIA legislation, supported by Sanders and sponsored by Republican lawmakers, would have added several more exemptions to the state’s public records law but met resistance from the public and other lawmakers.

When asked if she would support future legislation to add the FOIA exemptions that did not advance this week, Sanders said she was pleased with Senate Bill 10 because the security aspect of the legislation was the “number-one priority.”

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

The original legislation, filed Friday, had 40 House sponsors and 18 in the Senate but did not have enough support to advance in either chamber on Monday. The House has 100 members, the Senate 35.

In response to reporters’ questions, Sanders said she didn’t think she failed to communicate the substance of the legislation to lawmakers or misjudged the amount of support for the FOIA as it was.

“I think you [should] always go as big as you can and look for those changes that you know will make governing more effective and more efficient,” Sanders said.

Sanders said she appreciated that Senate Bill 10 passed both chambers with bipartisan support.

The only Democrats to vote for the legislation were Sen. Clarke Tucker of Little Rock and Rep. Mark Perry of Jacksonville.

Availability of documents

Progressive and conservative political voices, as well as nonpartisan First Amendment advocates, said the first two versions of the FOIA legislation would have denied Arkansans the right to access information about government officials’ conduct.

Some transparency advocates, including the Arkansas Press Association and Arkansas Broadcast Association, welcomed the narrowed-down Senate Bill 10 and its companion bill, House Bill 1012, when they were filed Tuesday night.

Others said they appreciated the removal of the other proposed exemptions but still believed the legislation was too broad.

State Police Director Col. Mike Hagar told legislative committees on Tuesday and Wednesday that Sanders needs more security and protection than previous governors because she is “a polarizing figure” and because she has three young children.

Hagar argued that access to State Police records could reveal patterns and protocols that bad actors could exploit.

Sanders called the special session three days after Little Rock attorney and blogger Matt Campbell of the Blue Hog Report filed a lawsuit over unanswered FOIA requests for ASP communications related to security for Sanders and her husband, Bryan Sanders, as well as documents reflecting ASP security costs for the Sanderses. Campbell has recently been scrutinizing and reporting Sanders’ use of the ASP plane for in-state travel.

Rep. David Ray, R-Maumelle, mentioned the lawsuit on the House floor Thursday while encouraging his colleagues to vote for Senate Bill 10 and House Bill 1012, both of which he sponsored.

Rep. Andrew Collins, D-Little Rock, said he agreed with Hagar that certain State Police documents such as security plans should be exempt from the FOIA. However, he said he opposed the legislation because it also exempted documents, such as receipts and reimbursements, that would not risk the safety of the governor and first family.

Arkansas officials’ security records shielded from public under altered FOIA law
Gov. Sarah Huckabee Sanders, left, signed a Freedom of Information Act exemption into law on Thursday, Sept. 14, 2023. Senate President Pro Tempore Bart Hester, R-Cave Springs, right, sponsored the legislation and was one of its biggest advocates. (John Sykes/Arkansas Advocate)

“Unless there’s a good reason given, they should, in my opinion, remain disclosable under the FOIA,” Collins said.

The legislation could have been written with specific language differentiating between documents that would risk the governor’s safety and those that would not, he said.

Hester, another sponsor of the legislation, said in response to questions at the press conference that the Legislature still has access to state agencies’ financial documents.

“Know that your elected officials, Democrat and Republican, will be able to see those through our audit process,” Hester said.