By Joyce O. Ajayi and Joseph Johns
Since our last blog post titled “Enhancing Arkansas FOIA for Accountability and Transparency” on Tuesday morning, September 12, there have been significant developments. By Tuesday night, lawmakers had introduced a new set of Arkansas Freedom of Information Act (AFOIA) bills. Notably, Senate Bill 10 and House Bill 1012 are among the ones to keep an eye on. The newly proposed bills specifically target exemptions of records related to the security of the Governor. The current version of the bill has a lot more support from within the legislature and with FOIA stakeholders, such as media organizations
These newly proposed bills are a significant improvement over the previous ones. However, while it’s entirely reasonable for public officials, like all citizens, to have the right to safeguard themselves and their families, it’s crucial to strike a balance by preserving and upholding transparency and public trust in government.
Under the current AFOIA, there is a predefined list of exempt items, and this list can always be expanded. However, considering Governor Sanders’ intention to extend the list of exemptions within the AFOIA, specifically to include executive security, it becomes essential to assess the unintended consequences of certain language in the current Senate Bill 10 and House Bill 1012. These bills, despite their improvements, still broadly exempt “Data, records, communications” related to the executive office.
The flip side of broad exemptions in FOIA is that they carry a risk of misuse, where government officials could wrongly withhold information that should be accessible to the public. As highlighted by the Center for Public Integrity in the State Integrity Report, the more exemptions that are introduced into open records laws, the greater the concerns about government transparency and the erosion of public trust in the process.
This is especially critical because leadership changes over time, and we shouldn’t rely on the false notion that our laws are only as enduring as a leader’s term in office. According to a 2014 article by Berliner, D. titled “The Political Origins of Transparency,” published in The Journal of Politics, one of the main purposes of FOI laws is to establish transparency as a fundamental part of government rules and procedures, which should be difficult to undermine in the future. Understanding this role is crucial for comprehending why FOI laws are enacted.
How might public trust be undermined?
The ongoing discussions during this special session reveal the areas in which AFOIA reforms might erode public trust, particularly with the initial introduction of bills that aimed to align the Governor’s internal deliberations with Federal Exemption 5. That move blurred the line between genuine security concerns and needless secrecy, potentially widening the trust gap between Arkansans and their elected representatives.
As the trust gap between Arkansans and their elected representatives widens, the credibility deficit is expected to grow. This basic logic undergirds findings by the COVID States Project, Trust in Institutions Tracker. As demonstrated in Table I, people have the highest level of trust in the level of government that is closest to them. These findings do not vary by political party, time, or the topic under consideration.
Table I: Trust in Institutions – January 2023
Table I also shows that as of January 2023, Congress is the least-trusted level of government. On the opposite end of the spectrum, city governments hold the highest levels of confidence and trust. The data paints a convincing picture when you consider that the open records law is one of the accountability mechanisms citizens use as the basis of their trust in state and local governments.
Following the literature, Arkansans, like other Americans, tend to trust their state and local governments more than the federal government. This makes intuitive sense, considering trust is built among individuals who view each other as equals, worthy of mutual respect and dignity.
For the majority of Arkansans, it is difficult to say that the people can effectively ensure accountability within their federal representation, except through the ultimate recourse of participating in elections. Given that elections are the most pragmatic and cost-effective means of holding elected officials accountable for most Arkansans, accountability tends to be a rather abstract and elusive concept, particularly at the federal level. Instead, it is better practiced and realized at the state and local levels.
The data also bear out this premise since 63 percent of survey respondents said they trusted city governments to do what is right. A mere 58.5 and 39.9 percent of respondents said they trusted state governments and Congress, respectively, to do the right thing.
It is reasonable to surmise that as the Arkansas state government becomes more and more like Congress on issues such as transparency, public trust will approach levels currently attributed to Congress. Such a decline in public trust could harm the credibility and legitimacy of the state government.
Deloitte, one of the largest consulting firms in the United States, recently published a report that aimed to improve trust in state and local governments. Results of the study support findings on the inverse relationship between social distance and levels of trust between citizens and their government. One of three key themes in the Deloitte study was that “the more local the institution, the more trusted it became.” The inverse also held true. The federal government was ranked among the least trusted institutions included in the survey.
Finally, Gallup also published the results of a poll that gauged the differences among local, state, and federal governments. The results were once again in line with the majority of data already analyzed.
Given all the data on public trust, why would Arkansas want to look more like the federal government in terms of administrative procedure on FOIA? There is no compelling reason to support such action. All the data indicate that people trust the government closest to them. While the concerns about Governor Sanders’ safety are well-founded, there is also substantial data to advise Arkansas executive leadership in exploring alternative approaches to ensure her safety and that of her family.
Alternative approaches to ensure the safety of public officials can be explored without compromising the principles of open government. One of the clearest alternatives is to enhance the security detail for Governor Sanders and her family.
Also, it is worth noting that various states, including Arkansas, in certain instances, have employed practices like redacting sensitive information when there are security threats. Some states also require confidentiality agreements for FOIA access to certain records in such cases, issue non-disclosure orders, or utilize balancing tests to weigh potential harm against public interest.
Rather than adopting exemption procedures at the state level that mirror those of the federal government, Arkansas should prioritize its identity as a state dedicated to transparent governance. As discussed in our previous blog post, Arkansas has already taken steps to improve transparency. It’s essential that we continue to build on this progress rather than undermine it.
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.