Deadline near for decision on ballot language for proposed constitutional amendment regarding Arkansas’ open records law | The Arkansas Democrat-Gazette


Arkansas Attorney General Tim Griffin is set to weigh in on Monday on ballot language for a proposed constitutional amendment to strengthen the Arkansas Freedom of Information Act.

The proposed amendment is the first part of Arkansas Citizens for Transparency’s two-prong strategy to bolster the state’s sunshine law.

While most ballot question committees attempt to persuade voters to support or reject a single ballot measure, Arkansas Citizens for Transparency will ask voters to support two proposals — a constitutional amendment and an initiated act — to strengthen the Freedom of Information Act.

Griffin’s office has until the close of business Monday to accept, reject or rewrite the ballot language for the proposed amendment, and until Dec. 18 to do the same for the proposed initiated act.

“I call them the principles and the policy,” said former state lawmaker Nate Bell, chair of Arkansas Citizens for Transparency. “The amendment is the principles, the act is the policy.”

Bell is leading the effort with Little Rock attorney David Couch, a seasoned campaigner who wrote Arkansas’ constitutional amendments legalizing medical marijuana and raising the minimum wage.

Once ballot language is approved, the group will have until four months before the 2024 general election to collect 90,804 signatures for the proposed amendment and 72,563 for the proposed initiated act. The attorney general has 10 business days to accept, reject or rewrite the ballot language.

The group submitted the constitutional amendment to the attorney general’s office on Nov. 27 and submitted the initiated act Dec. 4.

Couch said putting the group’s entire plan to strengthen the Freedom of Information Act in a proposed constitutional amendment likely wouldn’t pass muster with the attorney general’s office, which must first sign off on ballot language before groups can begin collecting signatures for their petition. So instead, the group settled on a shorter constitutional amendment, and an initiated act with more specifics.

“First of all it got to be a very long, intricate, comprehensive document which, you know, really probably should not be in the constitution,” Couch said. “The constitution should just be broad principles.”

The proposed constitutional amendment the group filed last month with the attorney general’s office outlines the group’s broad goals, such as giving Arkansans a constitutional right to government transparency and a right for them to sue the government if it fails to comply with the sunshine law.

The proposed constitutional amendment would make it difficult for the General Assembly to change the Freedom of Information Act. If the state Legislature wanted to make the sunshine law less transparent, two-thirds of lawmakers in both chambers would need to approve the change, which would not take effect until after voters signed off through a referendum in the next general election.

If an immediate change to the Freedom of Information Act were needed, nine-tenths of lawmakers in both chambers would have to approve the change, which would take effect immediately upon passage. However, voters would get a chance to veto and overturn the law through a referendum at the next general election.

The proposed initiated act also includes more specific tweaks to the Arkansas Freedom of Information Act, such as:

Establishing a commission, which would be called the Arkansas Transparency Commission, to help citizens obtain public records.

Defining a public meeting as members of an elected body meeting to discuss public business.

Repealing Act 883 of 2023, which allows school boards to meet in executive sessions to discuss legal matters.

Outlining when public bodies are allowed to meet behind closed doors to discuss cybersecurity matters.

Giving courts the ability to assess civil penalties against government bodies that fail to lawfully comply with a records request.

Allowing a litigant to recoup legal fees if a court finds they “substantially prevailed” in their lawsuit.

“When this passes, Arkansas is going to look good in the national public for once about something,” Couch said. “I’m tired of getting dogged and kicked around in national press with all kinds of shenanigans our General Assembly engages in and our governor engages in.”

Joey McCutchen, a Fort Smith attorney and an advocate for the state’s sunshine law, said he appreciates the group for defining what an open meeting is. While he isn’t a part of Arkansas Citizens for Transparency, McCutchen participated in public meetings the group held around the state as it drafted its proposals.

“I probably viewed it with skepticism at first, but I think it’s probably the right process to do,” McCutchen said of the group’s strategy.

The Arkansas Transparency Commission would consist of five members, three appointed by the Arkansas Supreme Court and one each appointed by the Senate president pro tempore and the speaker of the House.

The commission would have the authority to issue advisory opinions, conduct transparency audits, direct government officials to comply with the records requests and issue disciplinary actions for noncompliance, including filing lawsuits to make government officials comply with records requests.

Scott Trotter, an attorney who authored several constitutional amendments and initiated acts, including the one that established the Arkansas Ethics Commission, said he foresees issues facing the proposed transparency commission.

Trotter said he believes it’s difficult to write ballot language creating a complicated commission in an initiated act that covers a number of issues, which could lead to having the attorney general reject the ballot title or a lawsuit to get the act knocked off the ballot.

“The powers of this new transparency commission would be very substantial, very sweeping in its authority in what it can do to bring about enforcement,” Trotter said. “And that enforcement function and authority is far greater than what the Arkansas Ethics Commission has ever had.”

Trotter said he also had concerns that the proposed initiated act would give the Arkansas Supreme Court the power to appoint three of the five seats on the transparency commission. He said that could lead to a separation of powers issue, with the court selecting members of an arm of the executive branch.

“It occurs to me that it is certainly questionable as to whether our Arkansas Supreme Court ultimately would accept the idea of, you know, being responsible for appointing a majority of this transparency commission, and whether they would think that’s a proper exercise of authority by the Arkansas Supreme Court,” Trotter said.

The push to strengthen the Freedom of Information Act began during a special session called by Gov. Sarah Huckabee Sanders in September in which the Republican governor proposed overhauls to the state’s sunshine law. The session came after attorney and blogger Matt Campbell had requested communications and records on expenditures by Arkansas State Police related to security for the governor and first gentleman Bryan Sanders.

The governor said the state’s Freedom of Information Act, which dates to 1967, was outdated and needed changes to make government more efficient and to protect records related to the governor’s security detail.

After receiving substantial bipartisan pushback from the public, Sanders and the General Assembly agreed to a scaled-down law that exempts “records that reflect the planning or provision of security services provided” to the state’s constitutional officers.

The proposed amendment would make records related to security subject to disclosure within three months.

“So what we did there is we said, ‘Look, there is a presumption after 90 days a record is no longer essential to security,'” Bell said. “And if in fact it is essential to security, then, you know, the custodian of that record has every right to petition a judge to keep that record sealed and that can remain in place for up to two years.”

Following the special session, a coalition of journalists, activists and attorneys began holding a series of town halls to work on a constitutional amendment they said would strengthen the Freedom of Information Act.

“I think when the citizens saw the government was going to decimate FOIA, you know, the public rose up and said it’s not going to happen on our watch,” McCutchen said. “This was a broad coalition of conservatives, of liberals, of Democrats, Republicans coming together in the name of freedom, in my opinion.”

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