Under the guise of “security concerns,” Arkansas Gov. Sarah Sanders made a brash attempt this week to gut her state’s public records law. And then an unexpectedly beautiful thing happened.
Members of the public on the political left and right, in the media and in labor and from all walks of life, united to assert their right to know. For hours, Arkansans spoke up against politicians’ nasty attempts to kneecap their ability to hold the government accountable. They pushed their legislators to revise their proposals to limit the state’s Freedom of Information Act (FOIA).
By Wednesday, legislators were forced to file two new versions, each one slightly less offensive than the one before. The latest iteration of the legislation was signed into law on Thursday morning.
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It’s still bad for transparency—it severely restricts materials on who travels with the governor, how much it costs, and the activities of the Arkansas State Police—but it doesn’t ravage citizens’ rights as badly as the first version would have. That’s thanks to the power of the people.
Beware, though: This won’t be the last time Arkansas officials try to take away some of the hard-won rights enshrined in the state FOIA.
Laws like Arkansas’ FOIA are a crucial element of the public’s ability to participate in our democracy and provide oversight of government policy, bloat, and malfeasance. In each state, they entitle people to access government documents and are intended to empower the citizenry of our democracy; people need to be able to understand how government decisions are made in order to hold their government officials accountable.
While legal exemptions exist to block access to certain categories of sensitive information, like Social Security numbers or police investigatory techniques, there are plenty of other ways that government agencies try to circumvent having to disclose information that they think could embarrass them or expose them to criticism.
Attempts to update state Freedom of Information laws often face a lot of resistance from government officials, law enforcement, and businesses, who usually find that the more the people know, the harder it is for the government to just do whatever it wants.
Notably, none of the proposed changes had been run by the FOIA Review Working Group, which Arkansas Attorney General Tim Griffin tasked in June with crafting suggestions—in advance of the regular legislative session—for how to update FOIA. The Task Force unanimously voted Monday morning to oppose the original version of the proposed FOIA legislation.
The recent moves in Arkansas were a clear threat to the public’s ability to effectively hold accountable that state’s executive, a power grab that any state should reject in favor of an open and inclusive conversation around the public’s right to know and appropriate privacy protections for public officials.
Sanders claimed her family’s safety was at issue when she announced last Friday that this week’s special session would feature major amendments to the Arkansas FOIA. But in addition to a broader than necessary carve-out for even more security records than are already exempted in the state law, there were a number of extra features that raised great big red flags for almost everyone who wasn’t Sanders.
These included proposals to:
- Raise the bar for when requesters can win attorney’s fees in cases where the government is found to have violated the FOIA;
- Add a “deliberative process” exemption, modeled on the version in the federal FOIA, in order to withhold a broad range of records;
- Expand the category of materials that could be withheld as part of attorney-client privilege; and
- Exempt from disclosure communications between the governor and cabinet-level secretaries.
The emergency session came the same week that an Arkansas blogger sued to access records on the costs and companions associated with Gov. Sanders’ travel. The FOIA legislation is meant to be applied retroactively to January 2022, which would cover the records demanded in that lawsuit.
Security concerns should be taken seriously, and FOIA laws should reflect the realities of today’s electronic communications, but the suggested changes went way beyond security issues and would have affected all requesters of public records in Arkansas, with real repercussions for accountability in the state. It did not do justice to Arkansans’ right to transparency.
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.
This was irresponsible legislation. The public’s right to know shouldn’t be subject to a politician’s self-interest. Though the state’s FOIA wasn’t obliterated this time around, it’s clear that Sanders has government transparency in her crosshairs. Other elected officials across the nation should take heed of how rapidly much of her agenda was shut down.
