COMMENTARY: Assault on Arkansas Freedom of Information Act escalated

The Arkansas House State Agencies and Governmental Affairs Committee is scheduled to hear an amended version of House Bill 1610 by Rep. Mary Bentley, a Republican from Perryville, on Wednesday, March 29, 2023. Also on the agenda is House Bill 1726 by Rep. David Ray, R-Maumelle. Both bills would severely alter the Arkansas Freedom of Information Act.

By SONNY ALBARADO | Arkansas Advocate

The attack on your right to know the hows and whys of government decisions in Arkansas grows more intense in the 94th General Assembly.

Legislation filed Monday by Republican Rep. David Ray of Maumelle bulldozes the public records portion of the Arkansas Freedom of Information Act of 1967. House Bill 1726 hides the following documents from citizens:

  • Almost any governmental document, state or local, if an attorney is involved.
  • Any documents regarding an agency’s “deliberative process … in which opinions are expressed or policies or actions are formulated” when related to policy determinations or agency actions.
  • Any data or records produced or collected by or for a college or university or government agency performing research.
  • Records of ongoing police investigations “and any evidence or materials likely to be used by law enforcement in a criminal prosecution.” The current law exempts only materials that are “investigatory in nature.”
Rep. David Ray

Ray’s HB 1726 piles on to this insult by allowing officials to charge an hourly rate to retrieve and redact records after eight hours of that work. An agency would be allowed to charge the hourly rate of the lowest-paid employee or contract employee who responds to the records request. Today the law permitis agencies to charge only the cost of reproduction, including supplies, equipment and maintenance, but not the cost of personnel time.

The Freedom of Information Act also outlines that anyone can copy, photograph or make a video of requested records without charge using their own cell phone or copier. But with  Ray’s proposal, the records custodian could charge after eight hours — even if the person seeking the record uses their own equipment.

As if that wasn’t enough, HB 1726 lengthens the amount of time a records custodian has to respond to a request from three days to 10 if the documents are in either active use or storage. The person looking for the record has to be notified in writing if the search and retrieval will take longer than that, and provide a date and time when the records will be made available.

All of this will make it harder for you to seek information generated on the taxpayer’s dime — often by the people who asked for your vote. Public records are our records. But Ray’s effort here would make it harder and more expensive to get ahold of the info that already belongs to us by right.

The state FOIA Task Force is a panel of experts and citizens created by the Legislature to review proposals affecting the Freedom of Information Act and make recommendations to lawmakers. The task force met in emergency session Tuesday afternoon to weigh Ray’s bill, as well as another measure that re-defines a public meeting so officials would have to notify the public less often when they get together to talk shop. 

Perryville Rep. Mary Bentley is the sponsor of HB 1610, which would have changed the rules so local officials could get together anytime to discuss public business without public notice, as long as there were not enough people to count as a quorum. She’s introducing an amendment after the legislation failed.

FOIA Task Force members said Bentley’s amendment reducing a “meeting” from a quorum of a governing body to one-third of members is still contrary to the legislative intent spelled out in the state’s Freedom of Information Act.

Panel member Robert Steinbuch, a University of Arkansas at Little Rock law professor and author of a treatise on the FOIA, said there should be language in Bentley’s legislation that makes it clear that any gathering of public officials that don’t fit the definition of a meeting “cannot be decisional.”

And Ray’s proposals, Steinbuch said, will withhold from public scrutiny “all pre-decisional documents.”

“I guarantee that no FOIA request will be done in less than eight hours,” he said, adding that the legislation “undermines any claim that Republicans have a better position on freedom of information.”

“This is 100% an effort to disembowel the FOIA,” he said.

The panel voted unanimously to recommend against Bentley’s amendment. It also voted unanimously to “not only not endorse” Ray’s proposal but to “send a message that this legislation is not in the best interest of the people.”

Unfortunately, neither of the bill sponsors were present to offer input or hold down their end of the argument. Ray had said he planned to attend, but he texted the task force chair just before the start of the 4 p.m. meeting saying he couldn’t make it. Bentley had said previously she felt no necessity to appear before the panel.

Panel members expressed disappointment that neither of the lawmakers attended the meeting. 

Yes, it is extremely disappointing these legislators did not take the time to discuss their bills with the task force. Even if they suspected the panel would not look kindly on their proposed changes to the law, they should have shown respect for the process. They could have argued that there are legitimate reasons for some provisions of both of their bills, but lawmakers this session don’t seem interested in dialog or compromise.

Even more disappointing is that Gov. Sarah Huckabee Sanders supports Ray’s bill.

It seems the intent is to go with scorched-earth tactics when it comes to the public’s right to see what their government is doing.

As Neal Gladner, a task force member, said of HB 1726 Tuesday: “This is one way of saying, ‘Once we’re elected, we’re no longer accountable.’ ”

In the rush to git’er done, both bills will be heard by the House State Agencies and Governmental Affairs Committee on Wednesday afternoon starting 10 minutes after the House adjourns.