COMMENTARY: A win for keeping the public in public meetings in Arkansas

Sonny Albarado

By SONNY ALBARADO | Arkansas Advocate

Government transparency supporters in Arkansas won a skirmish Wednesday in a long-running battle over the public’s right to know.

An Arkansas House committee, on a split voice vote, rejected proposed legislation that defined a public meeting as a quorum of a city, county or school district governing body or other state boards or commissions. 

House Bill 1610, by Republican Rep. Mary Bentley of Perryville, would inflict great damage to the open meetings section of the Arkansas Freedom of Information Act. It would allow school board or city council members, for example, to get together in groups smaller than a quorum to discuss and even decide in advance of an official meeting the outcome of any number of issues of vital public interest.

As the publisher of the Helena World Andrew Bagley put it in speaking against the bill Wednesday: “this makes easy what is now hard” to do: reach decisions on public matters in secret.

Bentley’s bill is just one of several FOI-related bills moving their way through the 2023 Legislature.

One of those — Senate Bill 382 by Sen. Alan Clark (R-Lonsdale) — also seeks to define a public meeting, but in a much narrower way. It didn’t even get a vote in a Senate committee this week.

Clark’s bill defines a meeting as “the convening of two or more members of a governing body of a public entity.” It allows for “chance interaction” by two or more members of a governing body, but specifies that they’d be circumventing the law if they discuss, deliberate or decide public business during those encounters.

In arguing for her bill Wednesday, Bentley said the current law makes governing at the local level inefficient. She said it “ties the hands” of well-meaning local officials who believe they can’t talk to one another outside of a full meeting to just gather information about an issue or subject.

An Arkansas Municipal League lawyer told the House committee Wednesday that his advice to city officials is that they not get together at all outside of official meetings.

FOIA expert Robert Steinbuch told the committee that’s probably sound advice but a bad interpretation of the law.

“If two folks meet and do not come to a decision, they haven’t violated the law,” he said.

“What people want, and is important for them to have, is access to the sausage-making, to the decision-making,” Steinbuch said.

I agree with Steinbuch and Joey McCutchen, a Fort Smith attorney who has taken at least two important FOIA cases to the state Supreme Court: Nothing in the law and court decisions prevents county quorum court members from educating themselves or gathering information on matters they may end up having to vote on; it does prevent them from arriving at a decision together.

Steinbuch, a law professor, told the committee open-meetings laws should seek to strike a balance between the competing interests of government efficiency and transparency.

He noted that Bentley, unlike Clark, had not taken her bill to the Arkansas FOIA Task Force for review. The Task Force, created by the Legislature in 2017, is a nine-member body empowered to make recommendations on legislation affecting the FOIA. It has no legal authority, but legislators who have taken bills to the group often fine tune or change their proposals after discussion with their members.

Steinbuch recommended that Bentley take her bill to the task force, where a compromise between “these competing ideals” might be struck.

He also suggested she take the bill to the Arkansas FOIA Coalition, a private group of free press advocates, that meets during legislative sessions to review bills that touch on the FOIA.

I am a member of that group, and I made the same suggestion to the committee and Bentley.

But Bentley was hearing none of it.

“I’m not bound by anything passed in a previous general assembly,” she said. “So I’m not required to go before the FOIA Task Force.”

When committee members asked Bentley if she would work with the FOIA groups to arrive at a compromise, she said: “I don’t see it as necessary. I’m not going to pull the bill. It’s late in the session. It’s a good bill.”

She also noted that the language she proposes to add to the FOIA is the same as or similar to the definition of a public meeting in other states.

Before the vote, three committee members said they’d prefer that Bentley take HB 1610 to the FOIA Task Force and said they would vote against it.

We’ll see if Bentley follows through or if some compromise legislation arises.

Nevertheless, Wednesday’s victory is worth celebrating as we recognize the March 16 anniversary of the birth of James Madison, the author of the First Amendment and as we celebrate Sunshine Week, an annual celebration of the public’s right to know via public records and open meetings.