It’s a good idea to embed public’s right to know in Arkansas Constitution

An effort to ask voters to enshrine the state’s sunshine law in the Arkansas Constitution should come together quickly, says Nate Bell, the former lawmaker leading the charge. 

Bell, an independent from Mena, told the Advocate he hopes to announce the core members of a ballot question committee this week. He hopes to release a draft of the proposed constitutional amendment by mid-October for public comment and to submit an initial ballot title to the attorney general’s office for approval by early November.

This is good news for supporters of government transparency, who rose up in opposition this year to several attempts by legislators and Gov. Sarah Huckabee Sanders to severely weaken if not dismantle the Arkansas Freedom of Information Act. Attempts in the regular legislative session this winter by Reps. Mary Bentley (R-Perryville) to redefine a public meeting and David Ray (R-Maumelle) to exempt broad swaths of public records failed, although a stealth bill to allow school boards to meet privately with their lawyers and to discuss real estate deals became law.

The impetus for the nascent ballot initiative, however, came this month when Sanders and legislative leaders filed a bill during a special session to create several new exemptions to the FOIA’s public records provisions. 

Citizen frustration and anger over the assault on the public’s right to know forced the governor and floor leaders to backpedal on the first day of the extraordinary session, especially after they realized they didn’t have the votes to push the measure through.

Bill sponsors came back with a slightly revised version but encountered continued strong opposition from a diverse group of conservatives, liberals and nonpartisan open-government types.

Sanders ultimately stripped everything from the original proposals except for “data, records, communications, surveillance footage, security procedures, emergency plans, and other information compiled or possessed” by Arkansas State Police regarding the security of the governor, her family and other officials.

Open-government proponents, including some lawmakers, said the bill remained too broad and could be interpreted to hide some information that should remain public. But the measure passed 82-15 in the House and 29-2 in the Senate and took effect immediately upon Sanders’ signature.

Bell said last week that a diverse coalition is already at work on a rough outline of the draft ballot proposal. He’s also created a public Facebook group called AR Citizens for Transparency, which had more than 950 members as of Friday.

The plan is to keep it simple, Bell said, listing three goals for the eventual ballot question:

• Establish a clear constitutional right of access to public records and public meetings.
• Increase sanctions for knowingly violating that right.
• Take changes to the FOIA out of the Legislature’s hands.

Bell suggested that “the legislature could remove public records exemptions but not add any. Any additional exemptions would require a two-thirds vote of the legislators to refer it to the voters.”

The idea of insulating the public’s right to know from meddlesome politicians of all political persuasions resonates with me, and I look forward to seeing the draft.

So do a couple of longtime conservative transparency proponents.

“I think the language will be the key, and I anticipate it will be straightforward,” said citizen FOIA activist Jimmie Cavin when asked about his thoughts on the ballot initiative effort. “The law and its intent are really not complicated. It’s those trying to gut FOIA who try to portray it as complicated in an attempt to weaken it.”

The bipartisan opposition to the FOIA proposals during the special session “was truly amazing to witness and be a part of,” he said. “The people want transparency and are willing to put differences aside to fight together for it.”

Fort Smith lawyer Joey McCutchen agreed: “I’ve often said FOIA is not a conservative issue or a liberal issue, or a Republican or Democrat issue. It’s a freedom issue. It’s about our rights and specifically about our right to know.”

McCutchen, who has won lawsuits against public bodies over open-meetings violations, added that he believes people will put their public liberty over individual politics, “just like they did in the special session.”

He said he expects “this sunshine coalition” to put “before the people a constitutional amendment which is clear and concise and easily understood by the voting public.”

Bell said he expects the most difficult part of the process will be getting the ballot title approved, which must happen before backers can begin to collect signatures to get the initiative on the 2024 ballot.

The push for a constitutional amendment protecting Arkansans’ right to know might be one of the most important campaigns of the decade because attacks on the FOIA didn’t just arise this year. There has been a steady assault in almost every legislative session since at least 2015.

In 2017, nearly a dozen bills affecting the sunshine law were filed. One of them sought to protect documents produced by lawyers for the University of Arkansas. One of the bills in this year’s regular session, and again in the special session, sought to hide documents produced by all lawyers for all state agencies. 

State officials claim the FOIA puts government agencies at a disadvantage in litigation or when being threatened with litigation because opposing lawyers can request documents revealing strategy and advice to clients. They say existing exemptions for “working papers” aren’t enough, and they need the same attorney-client privilege afforded private attorneys.

The fear, of course, is that a smart public official can hide records that should be public by simply copying an agency lawyer on an email or other document. 

God is in the details, of course, and that’s why I wish the sunshine coalition well as they try to preserve our right to know.