Proposed FOIA law would provide needed help for citizens denied access to public records, meetings

The cause of government transparency in Arkansas took a significant step in the right direction last week. 

The group that hopes to make government transparency a constitutional right for Arkansans released a separate proposal on Monday that would amend state law to, among other things, define a “public meeting” and create an Arkansas Government Transparency Commission to “provide a government transparency resource for citizens without [their] having to resort to hiring a lawyer and filing a lawsuit.”

This is good news for all Arkansans who’ve had to fight their local governments and school boards for access to public records and meetings. The proposed commission would help enforce compliance with the state Freedom of Information Act and provide citizens with an arbiter on FOIA questions.

As the Arkansas Citizens for Transparency group put it in their letter to the public: “The purpose of this Commission will be to assist Arkansas citizens in accessing public records and public meetings and to enforce government compliance with the law concerning Arkansas citizens’ right to government transparency.”

Such a commission would have come in handy over my career. It could have arbitrated the refusal of county coroners to release their death reports or the Department of Human Services’ refusal to provide violent-incident reports from youth lockups on the questionable ground that, even with names redacted, someone could identify the individuals involved from a description of the event. Or it could have helped countless small newspaper reporters and editors force school boards to follow the open meetings law. 

Many journalists, including me, often worked for news organizations that hesitated to incur the legal costs of suing an agency or official to force compliance with the FOIA. For a long time, a sternly worded letter from a newspaper’s attorney would be enough to spur a recalcitrant official to comply. But that’s different now, and you can tell by the level of hostility to the FOIA shown in recent attempts to gut the law.

Arkansas is just like the majority of states that force citizens to hire a lawyer and sue governmental bodies when agencies fail to meet the requirements of public records and open meetings laws. Creation of the Transparency Commission would put the state among 13 others that provide some form of ombudsman or agency to help citizens obtain access to records and meetings to which they are entitled, according to Ballotpedia.

Some of those states have ombudsman offices that are part of the attorney general’s office, the state treasurer’s office or some other state agency. At least four states have independent, quasi-judicial public agencies or commissions with members appointed by the governor and other elected officials. Generally, those agencies provide guidance to citizens regarding public records and open meetings laws, and help with enforcement.

The proposed Arkansas Government Transparency Commission would have five members: three appointed by the state Supreme Court and one each appointed by the speaker of the House and president pro tempore of the Senate. Of the three Supreme Court appointees, at least one would be a licensed attorney who is not a sitting justice or judge, one who has demonstrated expertise in Arkansas government transparency law and one who is an experienced journalist or a representative of the media. The appointees of the House and Senate leaders would be lawyers.

It seems odd that a group that has courted public comment from regular citizens in crafting its proposals would not have a spot on the commission reserved for a regular citizen — a small flaw I hope can be fixed in the final draft before submission to the attorney general for approval.

The proposed law would further prohibit federal, state or local government officials or employees (with the exception of university professors) from being on the commission. Also prohibited from membership would be elected public officials, candidates for public office, lobbyists and officers or employees of a political party. Commission members would serve staggered terms and serve without compensation, other than expense reimbursements.

The composition of the proposed Transparency Commission strikes me as one of the strongest assurances I’ve seen that the agency would be as free of political interference and influence as possible under a system that requires state government’s acquiescence in its creation.

The proposal spells out the commission’s role thusly:

• Upon request, help citizens who’ve been denied access to a public document or meeting to obtain compliance by a record custodian or governing body.
• Help record custodians and governing bodies with compliance issues.
• Develop and conduct training programs for public employees, elected officials and the public in compliance with Arkansas transparency laws.

After receiving a request for assistance from a citizen, record custodian or governing body, the commission would be empowered to issue advisory opinions, conduct compliance investigations and render findings; order a custodian, public official or governing body to comply with the FOIA and other transparency laws; and issue disciplinary actions against a governing body or custodian.

The commission would also be able to subpoena documents and witnesses, take testimony under oath and file suit on behalf of a citizen who was denied records or access to a meeting. It would also be able to hire staff and retain legal counsel.

To pay for carrying out the commission’s authority, the proposed law requires the Legislature to appropriate adequate funds.

The proposal also empowers the commission to set a “reasonable fee” custodians could charge for producing data-mining requests for commercial purposes — a measure sure to please officials who’ve complained mightily about burdensome requests. The same section exempts large data requests from media organizations and for academic or educational purposes.

That’s a nice gesture, but the provision poses the same problem inherent with previous efforts at differentiating commercial and noncommercial purposes: a government agency still decides who is a journalist and who isn’t. The FOIA is called “the people’s law,” not the media’s law.

The proposed law spells out the process for helping someone who’s been denied access to records or who believes the custodian has not complied with the FOIA. The proposal authorizes the commission to levy a maximum $1,000 fine against a governing body or custodian for noncompliance. 

Any decision the commission makes can be appealed to circuit court by the requesting citizen, the custodian or the governing body. The court could penalize a custodian $1,000, which would come out of the violator’s wallet, not the public purse.

These are all welcome additions to Arkansas’ already strong Freedom of Information Act. We’ll be in good company if voters ultimately adopt the proposed initiated act, along with the proposed constitutional amendment.