SB373: Why this weakening of FOIA is bad for you

Updated 8:29 AM 3/20/2017

Alert: The Arkansas House of Representatives is expected to vote on SB373 today (Monday, March 20, 2017). The bill weakens the Freedom of Information Act.

We tend to take the Arkansas’ Freedom of Information Act (FOIA) for granted, but it is a vitally important protection for Arkansans.  The FOIA gives Arkansans the right to inspect government documents. The FOIA helps keep the government honest and it helps root out corruption, cronyism, and unfair and arbitrary government decisions.

Most likely you will never have to file a FOIA request on your own, but others file them so you will know what your government is doing.

SB373 by Senator Bart Hester would close access to government records deemed to be attorney client communication or attorney work product.  Conduit for Action opposes the bill.

Some universities say they want the exemption, so they will not be at a disadvantage when preparing to defend against lawsuits. This is a very weak excuse for such a broad exemption. The public’s right to know what our government does, far out weighs a university’s desire for a tactical advantage in a lawsuit filed by a former employee.

Why now?  Arkansas’s Freedom of Information Act was passed in 1967. Communications between government agencies and their attorneys have been subject to disclosure under the FOIA for FIFTY YEARS and the sky hasn’t fallen yet.  For fifty years, Arkansans have had the right to know what the government is doing in cooperation with their attorneys.

John Tull, an attorney for the Arkansas Press association says new legislation is not needed because under the FOIA a government entity can obtain a court order to protect documents in litigation.  Tom Larimer, executive director of the Arkansas Press Association, said the new law would allow state and local governments to withhold almost any document”.[i]

Originally, SB373 said it was exempting “A record that constitutes an attorney-client communication or attorney work product.”  Such a broad exemption raised concerns.  So a long amendment by Representative Bob Ballinger was added in the House of Representative saying the exemption only applied to records “related to pending or threatened litigation”. These words add nothing to restrict the broad application of the bill. The bill is just as broad as before because — anything at any time could be considered “threatened litigation.”

Ballinger’s amendment also added a ten-line intent section to introduce the exemption.  Intent sections are rare and there is no need for an intent section when any discussed in the intent section could be put in the primary text of the amendment.  In this case, the intent section will only end up in the notes of the Arkansas Code Annotated.

Often an intent section is merely used as a tactic to “sell” a bill that is a hard sell. This bill is a “hard sell” since it closes the door on public disclosure of records that have always been open under the FOIA.

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(See previous CFA article concerning SB373)