From safeguard to sieve
The public told not to mind its business
IT HAPPENS every legislative session, but this year it seems to be happening faster and harder and all across the board: This state’s once model Freedom of Information Act is being converted into the private preserve of selected politicians and the special interests tagging along with them. In a better time, the late great Winthrop Rockefeller and his gallant band of reformers swept into office and, after the long dark night that was Faugress, threw open the blinds and let the sun shine on state government. And all those who believe in Regnat Populus—Let the People Rule!— cheered. For how can We the People rule, and how good will our judgment be, if we’re not told what’s going on in state government?
But once again a group of misguided legislators is drawing a bead on the now much-riddled FOIA Act. For is there any agency of state government that wouldn’t prefer to operate far from the inquisitive eyes of the mere people? If so, it needs to speak up now because the serried ranks of closed government are on the march again. And their object this time is to seal public records that might be the basis of “pending or threatened” lawsuits, a vague description that covers an awful lot of dangerous ground. For what editor in this small, wonderful and ever feisty state isn’t regularly threatened by a lawsuit if he or she dares print some news item or editorial opinion that offends somebody somewhere from Fayetteville to Lake Village, Blytheville to Texarkana?
Maybe if one of these proposals were so narrowly drawn it covered only the legal strategy being considered by a state agency, it might be acceptable. (That’s a big might.) But many of these bills are just scattershot assaults on the public’s right to know. They sound like a solution in search of a problem. Who needs it? Clearly the State of Arkansas doesn’t, but at last count more than 10 bills have been tossed into the hopper trying to add still more loopholes to this state’s open-records law, which is already honored more in principle than practice.
Robert Steinbuch is a professor who teaches law at the University of Arkansas in Little Rock, and he literally helped write the book on the Freedom of Information Act and its regular crop of discontents. His considered judgment is that the latest proposed re-do of the FOIA by state Representative Bob Ballinger of Berryville doesn’t do the trick, either. And trick it is when it comes to rewriting a bill whose effect would still be not to fulfill either the spirit or the letter of the FOIA but to gut it.
To indulge in some full disclosure of our own, Dan Greenberg is the son of the Democrat-Gazette’s columnist and editorial writer by the same surname, and here is Greenberg the Younger’s summary of what Representative Ballinger’s bill amounts to: “This bill is the equivalent of taking a forklift into a public agency and moving a file cabinet full of documents from the ‘open-to-thepublic’ room into the ‘secrecy’ room.’ ”
But there’s still light and hope dawning as this much needed debate continues. Specifically in the form of two proposed bills. One would set up a committee of lawyers that would take a close look when a state agency denies any citizen’s right to ask for a peek at a public record. The bill’s sponsor is state Representative Clarke Tucker of Little Rock, and Professor Steinbuch says it would allow those who ask for a copy of an official record “to seek some redress without the costly, cumbersome and foreign process of going to court.” Hear, hear.
The less needless litigation, the better for any society. After all, it’s the rule of law that a just society seeks, not rule by lawyers. There’s a difference between the two, and how. For where the rule of law ends, there tyranny begins.
The best disinfectant remains sunshine. So let there be light, which surely is the purpose of this state’s Freedom of Information Act, and now is the time for all good men and women to come to its aid.
WORD AROUND the campfire is that the House could have already voted on keeping you in the dark by the time you read this. If so, the state Senate would have another shot at killing ol’ SB373.
And if both chambers fail to keep the public’s business public? The governor has, in the past, promised to veto such efforts. Some of us will hold him to it.