By Beryl Lipton / Electronic Frontier Foundation
In a special session of the state legislature, announced Friday by Gov. Sarah Sanders and convened Monday morning, lawmakers are expected to discuss making major amendments to the Arkansas Freedom of Information Act(FOIA), which has guaranteed the public’s right to government information since 1967.
The proposed changes will do a number of things that will reduce transparency in the state. These new limits for requesters include:
- An expansion of the category of non-disclosable materials to include almost all “security”-related data and spending information related to the governor and other officials. This would mean the public would no longer be able to access details on the cost to provide security to the governor and her companions on trips outside of the governor’s mansion, including such costs incurred by agencies like the Arkansas State Police.
- The addition of a version of the federal “deliberative process exemption” (also known federally as the b5 exemption) to the state’s FOI law. Some agencies in the federal government have applied this exemption extremely broadly and used it to exempt from disclosure materials that are considered “drafts,” even when they are effectively the final written policy on some issues.
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- Raising the bar for being awarded attorney’s fees, also known as “fee shifting.” Currently, where it’s determined that the FOIA denial was improper, FOIA requesters “shall” receive attorney’s fees; the new legislation proposes that compensation now be at the court’s discretion. The ability to recoup costs associated with fighting an agency’s unwarranted denial is a very important element of making FOIA accessible. Regular citizens and journalists who would normally not be able to afford the cost of fighting the government for access to public records are better able to find attorneys willing to take their cases if they can recoup fees once they’ve successfully shown that the government failed to follow the FOIA law. Agencies usually have more resources to battle requesters over materials they just don’t want made public, and without a clear fee-shifting provision, the government has more power to flout FOIA without being challenged in court.
In her announcement, Sanders claimed that part of the urgency of amending FOIA had to do with possible threats to her safety and the fact that the state’s FOIA has not been updated since the advent of the smartphone. News reports on the sudden legislative session, which will also include an effort to lower certain taxes in the state, also note that the session was announced the same week that an Arkansas blogger filed a FOIA case to access records on the costs and companions associated with Gov. Sanders’s travel. The proposed FOIA legislation is meant to be applied retroactively to January 2022, which would cover the records associated in that lawsuit.
Security concerns should be taken seriously, and FOIA laws should reflect the realities of the world where communication is primarily conducted electronically. However, changes to the state’s transparency laws should be done thoughtfully and with consideration from all concerned stakeholders — government officials and legislators, yes, but also members of the community, press, and civil society.
Government officials in Arkansas obviously agree on this, and a process of thoughtful deliberation on the question of modernizing FOIA has already been in the works. In June, Arkansas Attorney General Tim Griffin convened a FOIA Review Working Group to discuss the existing status of FOIA and present recommendations for ways to improve the law in advance of the regular legislative session, which is scheduled to begin in January. That Task Force unanimously voted on Monday morning to oppose the proposed FOIA legislation.
The proposed FOIA changes go beyond security issues and will affect all requesters of public records in Arkansas. Changes to the way attorney’s fees are awarded, for example, will have little bearing on the governor’s current safety, but will immediately harm FOIA requesters regardless of the content of their requests. Similarly, the proposed addition of a “deliberative process exemption” relies on the Supreme Court’s interpretation of the federal exemption and seeks to add a broad category of exemption that isn’t necessary for the governor’s immediate security concerns and doesn’t take into account the particularities of Arkansas government. The proposed legislation will have real repercussions for accountability in the state and does not do justice to Arkansans’ right to transparency.
It is irresponsible for the Arkansas Legislature to rush through legislation that disregards the widespread, collaborative work on and interest in improving FOIA already underway. It is particularly suspect to do so without any opportunity for public review of the proposed changes, particularly when they are so sweeping and seemingly directly connected to a politician’s self-interest.
FOIA is a crucial element of the public’s ability to participate in our democracy and provide oversight of government policy, bloat, and malfeasance. The current moves in Arkansas are a threat to the public’s ability to effectively hold accountable the executive of that state and should be rejected in favor of an open and inclusive conversation around the public’s right to know and appropriate privacy protections for public officials.
Beryl Lipton, Investigative Researcher, focuses her work on government transparency, law enforcement surveillance technology, and other uses of technology by government actors. She has extensive experience using Freedom of Information laws and large-scale public records campaigns in her research.
At EFF, Beryl supports the Atlas of Surveillance, The Foilies, The Catalog of Carceral Surveillance, among other projects. She enjoys teaching others about the strengths and limitations of public records laws and discussing the potential and real harms of the surveillance state.