By Joyce O. Ajayi and Joseph Johns
On Friday, September 8, 2023, Governor Sarah Sanders announced that a special session would begin at the Arkansas Capitol on Monday, September 11. In her announcement of the special session, the Governor hinted at potential amendments to the Arkansas Freedom of Information Act (AFOIA). She specifically mentioned a desire to protect “internal deliberations within the executive branch” from public scrutiny, citing concerns for both her personal safety and that of her family. These concerns stemmed from credible death threats that arose during her gubernatorial campaign and afterwards.
Following the Governor’s announcement, House Bill 1003 and Senate Bill 7 were filed in the Arkansas Legislature. Both bills had several objectives, including the limitation of public access to records related to the security of the executive branch; this encompasses communications, processes, and travel arrangements, retroactively to January 2022.
The bills also sought to restrict access to any documents, communications, or other forms of deliberative processes of Arkansas state agencies, boards, or commissions, including records associated with contract bids and discussions, attorney-client privilege, and legal strategy, especially during periods when the state is facing legal action.
From a cursory read of both bills, it was clear that there was substantial reliance on Exemption 5, a carve-out to the Federal-level FOIA that allows the federal government to withhold documents and records related to internal deliberations that occur before any final administrative decision is made.
It is essential for Arkansas residents to understand that Exemption 5 in the Federal FOIA has been cited as the reason for denying the release of federal interagency deliberative documents on more than 1 million occasions between FY 2008 and FY 2022. It is this same exemption that Governor Sanders proposed to narrow the scope of AFOIA.
At the start of the session on Monday, September 11, there was growing concern that those two bills were undermining the AFOIA. As of today, Tuesday, September 12, two new bills, House Bill 1009 and Senate Bill 9, have been introduced.
A quick review of these two new bills shows that the “deliberative exemption privilege,” has been removed, which is a positive development. However, some provisions of the two new bills, like the one involving “Records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department,” will still be exempt.
Moreover, Section 4, Paragraph (30), requires a credible threat of litigation for attorney-client exemption, while Section 4, Paragraph (31), states that all “502(b)” material is exempt even without a threat of litigation.
Invariably, these new bills may still pose challenges for the public in accessing certain information.
Without doubt and without reservation, Arkansans should be able to protect themselves and their families from physical harm and deprivation. However, the language proposed within the amendment to the AFOIA law would create unintended negative consequences. Some of these could include shielding the conduct of corrupt or inefficient government actors from public view and hiding embarrassing or otherwise unsightly internal deliberations about policy priorities. It is important to remember that any proposed legislation will become permanent and needs to be carefully considered and vetted to assuage any concerns about unintended consequences moving forward.
What should residents know about the current Arkansas Freedom of Information Act?
The current AFOIA has been praised by many, including Eliza Gaines, publisher of WEHCO Media Inc., the parent company of the Arkansas Democrat-Gazette. She said that AFOIA “is one of the strongest in the nation, and taxpayers have a right to access records that are available as public information.” Likewise, Assistant Senate President Pro Tempore, Clarke Tucker [D-Little Rock], praised Arkansas’s FOIA as “one of the strongest FOIA laws in the country.” Also, Arkansas Attorney General Tim Griffin echoed this sentiment on the Arkansas Attorney General’s website, where it’s noted that the AFOIA is considered one of the most comprehensive and robust frameworks for open-records and open-meetings laws in the United States.
What are the key elements that contribute to the praise of the AFOIA?
- Presumption of Open Records: This means that unless specific exemptions apply, all government records are considered open to the public, thereby promoting transparency.
- Presumption of Open Meetings: This also means that unless specific exemptions apply, AFOIA provides for transparency in government proceedings by requiring that meetings conducted by government bodies touching on public business are open to the public, allowing citizens to observe and participate in the democratic process.
These aspects of the current AFOIA are its notable strengths. Hence, consistent court rulings in Arkansas have reinforced the public’s right to access government records and public meetings, contributing to a culture of transparency.
How is Arkansas performing in terms of transparency at both the state and local levels?
Despite the past praise from members of the Arkansas press and the state legislature, there is still much work to be done to achieve government transparency in practice.
In the Sunshine Review’s 2013 Transparency Report Card titled “Bringing State & Local Governments to Light,” Kristin McMurray wrote that a review was conducted to evaluate the online transparency of various levels of government across the United States. The findings showed that Arkansas received an overall grade of C- in online transparency, with the state government earning the best score of any level of government (B), while its cities, school districts, and county governments received grades of C, C-, and F, respectively. Notably, Arkansas’s counties were ranked as the least transparent among all the counties in the country at the time.
Moving forward to 2015, the Center for Public Integrity produced the State Integrity Report, which ranked Arkansas as the 32nd-most transparent state in the nation. This report utilized a mixed-method cross-disciplinary approach to measure the extent to which each state fulfilled its commitment to providing transparent and accountable governance to its residents. States were evaluated across various categories of transparency and accountability, including the strength of their public records laws such as FOIA. In this regard, Arkansas received a D- score in State Integrity Investigation, with one of the contributing factors being our open records law. In the report, the authors noted that while Arkansas did offer robust overall protections for disclosing records, it also had various exceptions and gaps that obstructed the release of certain records.
The report highlighted that some states may have robust general protections for record release but simultaneously, countless exemptions and loopholes that impede such record releases, thereby impacting their overall ranking.
Although there haven’t been any updated editions of these reports since 2013 and 2015, they continue to provide a valuable foundation for evaluating Arkansas’s present transparency performance.
It’s also crucial to acknowledge that substantial improvements have been made since 2015. Regarding state-level transparency, AFOIA laws have been periodically updated and revised to address evolving challenges. For instance, during the past legislative session, the Arkansas General Assembly enacted Act 879. It mandates that public records custodians must respond to FOIA requests in time if no responsive records exist or if exemptions apply, and they must identify the relevant exemptions. Additionally, the Act allows that responses could be delivered via email.
Also, Arkansas maintains a transparency website designed to offer easy access to government spending data, contracts, and other essential information, which should improve public access to government activities. While the state’s transparency website has not seen extensive use, it still reflects a commitment to keeping the Sunshine Laws relevant.
In the “Following the Money Report 2018,” authors Rachel J. Cross, Michelle Surka, and Scott Welder categorized state transparency websites. Arkansas was placed in the second tier, known as “Advancing states.” It earned this ranking because its transparency website provides easy access to state spending, which can be downloaded and searched by recipient, keyword, and agency. The “advancing states” ranking is attributed to states that have less spending data available to the public than “leading states,” which hold the first place ranking in the Report.
When compared to its neighboring states, Arkansas’s transparency website outperformed those of Missouri, Mississippi, Tennessee, and Oklahoma. Each of those neighboring states received either a D or a D- for their promotion of web-based fiscal transparency. Among the neighboring states, only Louisiana received a higher grade (A-) for its fiscal transparency website, surpassing Arkansas’s B- grade.
At the local government level, the Arkansas Center for Research in Economics (ACRE) conducts research to assess local government web transparency and publishes the Access Arkansas: County and City Web Transparency Report. This report focuses on Arkansas’s 75 counties and 112 first-class cities (cities that at the last federal census have a population exceeding 2,500 people), ranking them based on fiscal, administrative, and political web transparency.
Key findings from the Report related to AFOIA at the local government level reveal that the situation is bleak. Only a few counties (10 out of 75) and first-class cities (23 out of 112) publish online information on how residents can make FOIA requests. Similarly, a significant number of counties (35 out of 75) and first-class cities (35 out of 112) lack online accessibility for procurement information, such as government contract bids and winners.
On political transparency, while officials’ names (97%), office phone numbers (97%), and email addresses (91%) are commonly available, there’s a glaring absence (0%) of financial disclosure and conflict of interest statements available online from counties.
Also, regarding information on meetings like quorum courts which is vital for public participation and scrutiny, not so many counties (only 33 out of 75) and first-class cities (just 51 out of 112) adequately publish such information. Regarding quorum court records, only 44 percent publish times and locations of public meetings, while only 12 percent of Arkansas counties publish archived videos. While we at ACRE do not know the intent of this discrepancy, it is reasonable to say that once a meeting of the Quorum Court adjourns, the conversation and decisions in that court will be lost to history in the absence of such items being made public.
At the state transparency level, ACRE has conducted limited research on AFOIA. This is because AFOIA laws have been periodically updated and revised to address evolving challenges. As a result, ACRE’s focus over the years has been on researching the expansion of AFOIA to include web transparency at the state level. However, Governor Sanders’ proposed amendments would significantly roll back the progress made in the area of AFOIA concerning state government records. This move could set a precedent for local governments to follow, undermining ongoing local transparency efforts.
What would be the impact of adopting the Governor’s proposed amendments to AFOIA? We will address that in more detail in Part 2 of this blog post, coming soon.
Dr.Joyce Ajayi and Mr. Joseph Johns are policy analysts at the Arkansas Center for Research in Economics (ACRE) at the University of Central Arkansas in Conway. The views expressed are those of the authors and do not necessarily reflect those of the University of Central Arkansas.