Commentary: Officials can’t say they serve the people while taking shots at the public’s right to know

Sonny Albarado

The governor’s latest attack on Arkansas’ FOIA would blast a likely fatal hole in a 50-year-old transparency protection

By SONNY ALBARADO | Arkansas Advocate

Pardon me if you’ve heard this before: Arkansans’ right to know how their state and local governments operate is enshrined in a 56-year-old law called the Arkansas Freedom of Information Act.

During this year’s legislative session, some lawmakers attempted to punch gaping holes in the FOIA’s defense against government secrecy, large enough to make much of the law meaningless. Thankfully, they did not succeed. 

But now Gov. Sarah Huckabee Sanders — apparently in a fit of pique with a local blogger, and with the support of key legislators — proposes to take a swing with a wrecking ball by hiding many state agency records from public view. Under the guise of protecting the safety and security of state officials, she also proposes to keep secret any details of trips she and others take at taxpayer expense using aircraft belonging to Arkansas State Police.

The details are in this piece of legislation that lawmakers will consider in a special session starting Monday and scheduled to end Wednesday.

With 40 House sponsors and 18 in the Senate, the bill aims to add to the state FOIA an exemption modeled on the “deliberative process exemption” contained in the federal version of the statute.

Attorney and FOIA warrior Joey McCutchen of Fort Smith noted in an email Friday that some have called this the “most abused exemption” in the federal government. “Others call the federal exemption the ‘withhold it because you want to exemption.’” That “just because I can” philosophy directly contravenes the stated intent of the Arkansas Freedom of Information Act:

“All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records,” the Arkansas FOIA states. Yes, there are specific exemptions, but the courts for 50 years have generally interpreted the law in favor of openness.

McCutchen said Friday — and I agree — that “if this exemption becomes law, Arkansans will overnight go from [having] the strongest open records law in the country to the weakest. This bill is not government of the people, by the people, and for the people. This bill is government of the government, by the government and for the government. Legislators will have to decide if they represent the people or the government.”

The elements of the bill pertaining to security are nothing more than a smokescreen designed to keep a persistent user of the FOIA — attorney and blogger Matt Campbell — from obtaining information from Arkansas State Police about trips made by the governor and others in state aircraft. There’s even a clause that makes the secrecy retroactive to January of 2022. Campbell, who blogs under the Blue Hog Report name, in fact sued the ASP on Tuesday over its refusal to provide certain documents.

It’s unconscionable that the governor would suggest weakening a decades-old law that protects the right of all Arkansans, regardless of political affiliation, to keep an eye on their government to keep one persistent user of the FOIA. Sanders calls it “weaponization” and said the proposal isn’t aimed at any single FOIA requester.

McCutchen in his email called the bill’s security measure a Trojan Horse, and Campbell wrote in an email: “This is not about ‘security’ in any sense of the word.”

Indeed, the entire bill is basically a power grab and would be a stain on Arkansas’ historic role in making government accessible and transparent to its citizens.

I urge lawmakers to put the brakes on this runaway train.

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