University systems push for greater secrecy
By Roy Ockert Jr.
Leaders of Arkansas’ two university systems are wasting their precious resources while trying to deal a crushing blow to freedom of information and their own transparency. Apparently they have too much time on their hands.
They’ve had little success in trying to get money for their member campuses or keep guns off those campuses so now they’re trying to make an already egregious bill even worse. That would be Senate Bill 373, which at present would exempt attorney-client communications from disclosure under the Arkansas Freedom of Information Act.
The Arkansas Democrat-Gazette reported over the weekend that the University of Arkansas and Arkansas State University systems are working with state Rep. Bob Ballenger, R-Berryville, on an amendment to SB373.
At present the bill would add a 24th exemption to the Public Records section of the FOIA, saying that this would not be subject to inspection and copying by citizens: “A record that constitutes an attorney-client communication or attorney work product.”
Correspondence obtained by the Democrat-Gazette showed that university officials and Ballinger are collaborating on an amendment that would expand the exemption to cover records involved in future or “threatened” litigation.
That could be defined to cover virtually any communication between public officials and their attorneys since almost anything could conceivably involve future litigation. In fact, even the correspondence between Ballenger and the university system lawyers could have been kept secret under such a change to FOIA.
John Tull, a Little Rock lawyer who specializes in First Amendment and freedom of information matters, told the newspaper in an email: “For instance, if an employee is fired for improper activity, the record keeper could claim this is attorney work product because the employee has threatened litigation. It will put the burden on the public to bring suit” to obtain public records.
Of course, it’s hard to bring suit if you don’t know a record exists, and it can be expensive if you do so.
Educational administrators especially have long chafed at FOIA provisions that prevent public officials from speaking in private with their lawyers, whether in meetings or in written communications. Over the years I’ve seldom heard complaints about these provisions from municipal or county officials, or even from attorneys.
But too many educational administrators eschew their role as public servants and instead adopt a corporate mentality toward controlling public opinion by releasing only information that will place their institutions and themselves in a good light.
Two years ago then-Rep. Nate Bell, R-Mena, pushed a bill that would have required every executive session of a public body to be recorded in case of later questions about its legality. While the bill may have been well-intended, it got little support. In a vain attempt to get school boards and municipal lobbyists on board, he added a provision that would have allowed a governing body to have its attorney sit in on executive sessions — you know, just to monitor compliance with FOIA.
Fortunately, that wasn’t enough, and the bill died in committee.
That and other efforts to allow public boards to meet in private with their attorneys have failed so now they’re trying a new approach.
“Our main concern has been the abuse of FOIA related to threatened or pending litigation,” Ben Beaumont, UofA System senior director of policy, told the Democrat-Gazette. “We expect the bill to be amended in a way that will narrow it to the litigation context.”
That would still be way too broad, and I’m disappointed that the leaders of my alma mater would join the UofA in this anti-transparency effort.
SB373 was originally sponsored in the House of Representatives by Rep. Andy Davis, R-Little Rock, but when he heard complaints about how damaging it could be even in its main form, he pulled out, and Rep. Bart Hester, R-Cave Springs, stepped in. That should have told our university officials something.
Some officials complain that the law gives opponents an unfair advantage in litigation with public bodies. Of course, that assertion ignores the fact that public bodies usually haves a huge advantage in resources over individuals suing them or being suied by them.
There is a reason why the advice and other communications between public boards, councils and commissions and their attorneys should not be private. Those public bodies are owned not by the officials and administrators who run them but rather by the people. The people should have and must have knowledge of what those public agencies are doing and what they plan to do.
Indeed, we should know when a rape occurs on the local college campus. We should know when a school employee assaults a student. We should know when a city department head is fired. We should known when public funds are misused. If this secrecy provision should become law, it could be used to cover up these sorts of things, and more, indefinitely.
SB373, perhaps in its newly amended form, was supposed to go before the House state Agencies and Governmental Affairs Committee, which Ballenger chairs, on Monday. There it should be given a proper burial.
Roy Ockert is a former editor of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.