Lawmakers, public await promised replacement for controversial Arkansas FOIA legislation
UPDATE: Senate President Pro Tempore Bart Hester late Monday night introduced a new version of the bill to add exemptions to the Arkansas Freedom of Information Act. It can be read here.
This week’s special session of the Arkansas Legislature, expected to be a smooth-sailing three days, hit a major snag on day one when a bill championed by Gov. Sarah Huckabee Sanders did not have enough support to advance in either chamber.
Identical bills filed Friday in both the House and Senate would have added four new exemptions to the Arkansas Freedom of Information Act, shielding a range of government records from the public.
Sanders touted the proposed exemptions as a boon to government safety and efficiency. Progressive and conservative political voices, as well as nonpartisan First Amendment advocates, have vocally opposed the legislation.
Senate President Pro Tempore Bart Hester, R-Cave Springs, promised a replacement Senate bill and some testimony from the public in the Senate Committee on State Agencies and Governmental Affairs Monday evening, followed by more testimony and a vote Tuesday morning.
Around 5:30 p.m., Hester told the Senate he expected the new bill to be filed in half an hour.
There was still no bill after 8 p.m. Hester said close to 9 p.m. that he still expected to file it Monday night.
The initial legislation proposed adding four new exemptions to the Arkansas FOIA:
- Records that reflect the planning or provision of security services provided to the governor and other state elected officials.
- 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.
The second exemption is modeled after a similar clause in the federal FOIA, which has been criticized as easy for public officials to use as an excuse to withhold requested documents.
While announcing this week’s special session, Sanders said Friday that the proposed changes would foster government efficiency and prevent people from “weaponizing FOIA.” She also said the legislation wasn’t in response to any one person or instance.
However, on Sept. 5, Little Rock attorney and blogger Matt Campbell of the Blue Hog Report filed a lawsuit against Arkansas State Police for failing to provide a number of records related to Sanders’ and her family’s use of the ASP airplane. Campbell has recently been scrutinizing and reporting Sanders’ use of the plane for in-state travel.
Many of the records Campbell is seeking from ASP would be explicitly shielded from the public under the initial legislation proposed, which would have applied retroactively to some records going back to Jan. 1, 2022, a year before Sanders took office.
Sanders claimed public knowledge of ASP records could pose a security risk by revealing “sources, methods or patterns” of protecting her and her family.
Hester told reporters Monday afternoon that lawmakers were considering trading the “deliberative process” clause for an exemption for correspondence between the governor’s office and cabinet secretaries. He later told the Arkansas Democrat-Gazette that the correspondence exemption would definitely be in the new bill.
Hester also told reporters he believed the proposed changes were “a very small protection to work for efficiency in government.”
The members of the public who filled every seat in the Senate upper galleries disagreed, waiting hours for an update on the FOIA legislation in hopes of testifying at the State Agencies committee meeting that ultimately did not happen.
Not enough votes
The initial bill also did not advance in the House on Monday, since the chamber failed to suspend the rules and allow bills to be heard in committee immediately after being assigned there. Three motions failed on voice votes, and the House later fell short of the two-thirds majority required to expunge each of the three votes.
Meanwhile, the Senate suspended its rules, but the State Agencies committee did not meet as planned in the afternoon. The only bill on its agenda was Senate Bill 7, the initial FOIA bill.
The eight-member committee did not have enough votes to pass the bill. Sen. John Payton, R-Wilburn, was absent, and three committee members opposed the bill: Clarke Tucker, D-Little Rock; Stephanie Flowers, D-Pine Bluff; and Bryan King, R-Green Forest.
Senators considered reassigning the bill to the Senate Judiciary Committee, which also includes Flowers and Tucker, but reportedly did not have five votes there either.
The original legislation had 40 House sponsors and 18 in the Senate, the latter being a simple majority of the chamber.
Hester, who is also a member of the State Agencies and Judiciary committees, told reporters Monday afternoon that despite having 18 votes, he wanted to present a bill that left “most members feeling good about what we did today.”
Both bills had an emergency clause, meaning that the law would go into effect immediately upon being signed. Passing an emergency clause requires a two-thirds majority, or 24 Senate votes.
Around 3 p.m., Hester told the Senate that instead of amending the bill, lawmakers would likely file a new one and take it up Monday evening in the Senate State Agencies committee.
Several senators, including Tucker, Flowers and King, expressed concerns about allowing lawmakers and the public time to read and understand the bill before the committee hearing. Hester repeatedly insisted the substance of the new bill would be largely the same as the first one.
Flowers tried to make a motion for the Senate to adjourn so the new bill would not come before a committee until Tuesday. Lt. Gov. Leslie Rutledge, who sits as Senate president, ruled Flowers’ motion out of order since Hester was still speaking to the Senate.
King asked Hester if he had a timeline in mind for when the new bill would be filed and when the State Agencies committee would meet. Hester said he did not.
“This is unbelievable,” King said.