Shut up, they explain
Freedom of information under fire— again
IN CASE YOU haven’t heard, various lawheads for state agencies are still claiming they need to be exempted from the state’s once model Freedom of Information Act, this time because it supposedly gives opposing counsel a leg up when it comes to arguing cases. Yet these same people were able to offer no specific examples of cases in which they were forced to reveal their legal strategy to the opposition. The attorneys for a couple of prestigious units of state government— like the University of Arkansas system and the state Highway and Transportation Department— have complained loudly about how the FOIA hinders them as they seek to represent their clients. But when it comes to offering specific examples, they fall silent.
The general counsel for the University of Arkansas system, David Curran, claims that his crew of lawyers “have had opposing counsel ask for deposition notes during depositions. . . . And we have had attorneys for opposing counsels ask for draft briefs before they are actually filed.” The best and most concise rebuttal of his argument remains: So what? Every savvy lawyer already knows that any materials he brings to a deposition are subject to close inspection by the court and/ or lawyers on the other side. Why not consider requests for such evidence good practice for the trial instead of grousing about it?
What we seem to have here is a solution in search of a problem, and so far no actual problem— no specific case— has been cited. So just who is abusing the legal process here? The proposed solution— Senate Bill 373— is specific, far- reaching and full of mischievous possibilities. For it would exempt communication between the state’s attorneys and their work in progress from public view in “pending and threatened” litigation. Goodness, as any newspaper editor can testify, lawsuits are always pending or threatened in this business. That’s less a legal argument than an occupational hazard for the state’s press.
A spokesperson for the UA system, Nate Hinkel, says that any request for such information would have a chilling effect on its operations. Welcome to the club, Mr. Hinkel. Come on in, the water is indeed cold, but it can re- awaken sound instincts— particularly a renewed devotion to freedom of the press.
At this point, a piece of misconceived litigation like SB 373 proposes to use a howitzer against a gnat, and only an abstract gnat at that. It’s redundant, overblown and generally a menace to the people’s right to know and judge for themselves. Or as a lawyer from Little Rock named Glenn Hoggard judiciously summed up this tempest in a legal teapot, SB 373 is so broad, it would create “a gaping hole that you can drive a truck though. It would let state and local governments keep what they’re doing hidden from their own constituents and anybody else with an interest in getting at the truth.”
Thankfully, SB 373 is having a tough go. It failed to get through the Senate earlier this week. A special thanks to those who spoke out against it, such as Bryan King of the Senate and Tim Griffin of the lieutenant governor variety. But there’s always tomorrow. It’s time this bill was killed in the crib.
RICHARD Peltz- Steele, who’s now on the faculty of the University of Massachusetts at Dartmouth, spent years researching this state’s Freedom of Information Act and its application. He says he’s unaware of any claims that this state’s attorneys have been forced to reveal their game plans because of Arkansas’ open- records law. And he ought to know, having spent two decades looking at it, studying it. Asked if he knew about any state agencies that were obliged to hand over their notes to the opposition, he replied: “No & no.”
To quote UA’s spokesman Mr. Hinkel, “It is because of the risk of our records being requested, a risk that is actually based on the incidents discussed, that our lawyers refrain from communicating in writing with each other and with their clients and must look for ways to prepare for trial that will not give their trial strategy away. You only have to be FOI’d once to have this alter your practice. Each time our lawyers prepare for a deposition, they know their deposition outlines might be requested before the deposition date. Because of this, particularly when dealing with opposing counsel who have a propensity to use FOIA during litigation, the lawyers in our office have to consider the timing of when they prepare for the deposition and what they put down in writing.”
All of which sounds more like planning ahead than any unprecedented burden. Lawyers should be made of sterner stuff. And so should just plain citizens determined to protect their rights.