By Roy Ockert Jr.
Arkansas has long had one of the strongest freedom of information laws in the nation, but keeping it effective has been a struggle for news media and citizens organizations.
That’s why Arkansas Citizens for Transparency, a bipartisan coalition, has embarked on a two-pronged initiative for the Nov. 5 general election ballots. The two proposals are not interdependent, meaning that one could pass without the other, but they are designed to fit together.
In last week’s column I reviewed the proposed constitutional amendment, which is titled the Arkansas Government Disclosure Amendment of 2024. Its most important function would be to require the Legislature to pass changes to FOIA by a two-thirds vote of both houses and then submit those proposed changes to a vote of the people at the next general election.
Advocates are now gathering what they hope will be the required 90,000-plus signatures to place that amendment on the ballots.
At the same time they are gathering signatures for an initiated act called the Arkansas Government Disclosure Act of 2024. That will require petitions containing the signatures of some 75,000 registered voters.
In effect, this proposal would amend the current Freedom of Information Act. Following are the major changes that would result from passage.
• A 2023 legislative amendment that reversed a provision in FOIA since its passage in 1967 would be repealed. The 2023 change allows a school board, superintendent and their attorney to meet secretly.
• Any portion of a personnel record or public record for which disclosure would “constitute a clearly unwarranted invasion of personal privacy” of a person living or dead would be exempted from disclosure.
• When personnel records are exempt from public disclosure, a person, or his/her designated representative, who is the subject of those records would have to right to examine and/or copy them. That person, or a representative, would be notified of any request for disclosure of those records.
• When requested public records are not immediately available, the deadline for granting access would be no later than the end of the third working day after a request.
• A public meeting would be defined as any “communication between two of more voting or nonvoting members of a governing body”on any matter “on which official action will foreseeably be taken by the governing body.” That includes two or more formal or informal communications, such as email or text, if used to poll members’ votes or solicit either support or opposition from members of the governing body. Two or more employees of a governing body could communicate without restriction.
• A governing body would be allowed to meet in executive session to discuss a response to a demand affecting the cybersecurity of the government entity.
• Every public meeting must be conducted in a manner that allows the public to attend and to hear discussion of public business. This provision would require publishing notice of regular meetings 48 hours in advance on the governing body’s Web site or social media and also to anyone requesting notice. Two hours’ notice of emergency or special meetings must be given to news media and others requesting notice.
• Any person whose rights are denied under FOIA would be able to appeal directly to Circuit Court for a hearing within seven days. If the person prevails, the court may award attorney’s fees and other costs against the defendant upon finding the action to deny records or access to public meetings was made in bad faith. The court may also assess a civil penalty of $1,000 in such case.
• A public record related to security would be presumed subject to disclosure if it is more than three months’ old unless the custodian of such a record is able to prove the continuing confidentiality of the record is essential to security. This modifies the FOIA amendment passed in a special session last year, exempting all records related to the security of the governor and other state officials.
• The Arkansas Government Transparency Commission would be established to help citizens access public records and public meetings and to enforce compliance with laws related to government transparency. The commission would include five members. The speaker of the House, the president pro tempore of the Senate and the minority leader in the Senate each would appoint one member who is a licensed attorney and a former Circuit Court judge, Court of Appeals judge or Supreme Court justice. The minority leader of the House would appoint one person with expertise in Arkansas laws related to government transparency, and the lieutenant governor would appoint a person with experience as a journalist or media representative.
• A citizen with a complaint could direct it to the commission, which would have extensive powers to resolve the complaint, including directing a custodian, governing body or public official to comply with the law; fining or otherwise disciplining a governing body or its custodian; or filing suit in Circuit Court. Regardless of the outcome, the citizen could still appeal to Circuit Court.
Even if the proposed FOIA amendment does not make the ballot or fails to pass, the initiated act could stand on its own and would strengthen our rights to public records and public meetings. The amendment, though, would make it harder for our elected leaders to take away those rights. Both are needed.
Roy Ockert is a former editor of The Jonesboro Sun, The Courier at Russellville and The Batesville Guard. He can be reached at royo@suddenlink.net.