FOIA meetings in secret
Attorney General Tim Griffin’s recent announcement that he’s creating an advisory “bipartisan working group” to make suggestions to him for modernizing, updating and improving our Freedom of Information Act, which we enacted in 1967 specifically to empower the people of Arkansas. Why do this?
Moreover, this governmental committee’s activities on transparency will be closed to the public. Sounds to me like a skit from “Saturday Night Live.”
Its seems Griffin believes our effective transparency law is in need of unspecified streamlining. Funny, I haven’t heard an outcry from the people that the law we’ve had for decades suddenly isn’t working for them. Have you?
When I read our FOIA today as a citizen, the words and intentions seem as crystal clear to me as in the times I’ve used it over the years to pry free public records and hold public officials accountable for illegal secrecy.
Concerns naturally arise when announcements about a political working group offering suggestions about changing the law made the news.
Besides, in virtually every session, the Legislature updates and alters the FOIA. For example, this past session, Alan Clark, working with bulldog attorney Joey McCutchen of Fort Smith, passed a bill requiring government agencies to cite the specific exemption used when refusing to turn over records.
On the other hand, at the end of this session, a bad bill got through that allows for otherwise public meetings of school boards to be closed to discuss anticipated litigation against tax-supported public schools and other issues. There’s a rule looking to be abused perhaps before it’s even implemented.
During the previous session, Sens. Dan Sullivan and Clarke Tucker passed a bill to secure the right of successful FOIA claimants to get attorney’s fees after some officials came up with a new argument claiming attorneys only get fees after a full trial rather than after settling the case successfully. That argument necessitated a change. Sullivan and Tucker updated the law accordingly.
That same session, then-Senator Jason Rapert updated the FOIA to deal with electronic video records. Rapert brought together all factions and ensured the FOIA remained free of attempts to charge citizens twice for labor they’d already paid for.
Two of the seven officials on Griffin’s newly formed “updating” committee were instrumental in pushing House Bill 1726 through the Legislature in this year’s session. It was a bill FOIA guru UALR law professor Robert Steinbuch maintains “would have killed the FOIA.”
HB1726, Steinbuch said, would have eliminated the quick turnaround on the production of records, notwithstanding that government agencies should now be able to more quickly respond given the move toward electronic records. “The truth in 2023 is that government agencies need to regularly maintain their records online even without a FOIA request. That amounts to true transparency. Yet most agencies remain uninterested.” Wonder why, valued readers? Further, HB1726 would have allowed the government to hire private contractors to do the government’s FOIA work, then charge we the taxpayers for the contractors’ exorbitant labor fees even though we already pay government employees to respond to FOIA requests.
“In other words, the government could’ve charged taxpayers hundreds of dollars for each hour a private contractor might slow-walk supposedly looking for records in response to FOIA requests,” said Steinbuch. “The same HB1726 exempted all local government from FOIA entirely. Hopefully that was unintentional, but that’s what happens when you introduce a bill on a Monday, skip the FOIA task force meeting on Tuesday, and bring the bill to committee on Wednesday.”
Thankfully, HB1726 didn’t fester that long before expiring in committee.
Members of Griffin’s advisory group are state Sens. Breanne Davis and Clarke Tucker, state Rep. David Ray, Deputy Attorney Generals Ryan Owsley and John Payne, attorney John Tull III and Ashley Wimberley, executive director of the Arkansas Press Association.
Asked why he, of all Arkansans, isn’t on this committee as a co-author of the original Arkansas FOIA treatise and former member of the state’s FOIA Task Force, Steinbuch said, “the first I heard of it was when someone sent me the press release. Tim doesn’t need to put me on his committee, and I wouldn’t serve on it as long as [an] FOIA committee oxymoronically remains closed to the public—as it remarkably is.
“But I had expected Tim would have contacted me to tell me about it ahead of time. That’s what I would have done, at least. Sometimes important people don’t have time for the little folks.”
When it comes to the Arkansas FOIA, Steinbuch is far larger than “little,” as he suggests. But the slight is both large and telling nonetheless. It’s most troublesome to me that active spokesmen for ensuring the people’s right to know would be bypassed for three state officials who pushed for the terrible HB1726.
Also notably missing from the list of Griffin’s “modern” FOIA influencers is even one ordinary citizen, or Fort Smith attorney Joey McCutchen, likely the most active FOIA lawyer in Arkansas when it comes to pursuing and winning FOIA cases against public entities who violate the law. How could both he and Steinbuch have gone ignored?
I asked McCutchen to weigh in with his thoughts on Griffin’s appointments. He said he too finds it ironic a committee tasked by the attorney general with “modernizing” FOIA, the people’s sunshine law, has no average citizens on the committee, and its meetings will be closed to the public.
“Further, the committee is stacked with two employees of the attorney general [one of whom, Owsley, presented HB1726 in committee] and two legislators [Davis and Ray] who sponsored HB1726, which would have decimated FOIA’s open-records provisions.”
Those three represent almost half the committee whose questionable ideas for changing our law are on record.
“Any attempt to ‘modernize’ FOIA must be consistent with the 1967 legislative intent in part,” McCutchen said. “That states: ‘It is vital in democratic society that public business be performed in an open and public manner so that electors shall be advised of the performance of public officials and of decisions that are reached in public activity and in making public policy.’
“If this committee’s recommendations are not consistent with FOIA’s intent, then recommendations are nothing but a sham to weaken FOIA,” McCutchen added.
“Further, since the attorney general has chosen to hold committee meetings in the dark, there should be a public comment period for citizens on any recommendations, and any recommendation should take the comments of citizens into account.”
The bottom line here, valued readers, always has been preserving our FOIA. It exists solely for we the people, as in you and me, rather than for those we elect and appoint to create ways, as McCutchen so aptly puts it, to keep us in the dark about our business.
So let’s hope the Legislature and people of Arkansas see Griffin’s committee for what it is: A questionable far less-than-urgent or necessary attempt to revamp a long-effective law that, with occasional necessary tweaks, has served us very well for almost 60 years.
I urge every Arkansas citizen who cares about how the legislators they elect represent them to follow their lawmakers’ actions and intentions closely and make their voices heard when it comes to preserving and protecting their legal right to know.