BILL to shield files in state litigation clears panel.

An amended bill intended to shield attorney-client communications of state agencies from the state’s open records law was approved by a House committee on Wednesday.

Rep. Bob Ballinger, R-Hindsville, replaced the entire text of Senate Bill 373 with an amendment. He said it was aimed at solving problems for state attorneys who might have to disclose litigation strategies to opposing lawyers under existing law.

“I think we’ll actually be able to have the citizens be able to be represented in court without the concern of having unfair advantage by the plaintiffs’ attorneys,” he said.

But open records advocates said the bill would help governments hide wrongdoing and that state attorneys already had the ability to withhold requests for private records with a court order.

SB373 is one of more than

10 bills being considered this session that restrict the public’s ability to receive information from the government.

“Arkansas has one of the strongest Freedom of Information Acts in the country. This is going to have unintended consequences,” said Joey McCutchen of the Western Arkansas Transparency in Government Group.

The amended bill was approved without dissent after about an hour of debate. The measure heads to the House for further consideration.

SB373 was supported by lawyers from the University of Arkansas and Arkansas State University systems and the state Highway and Transportation Department.

David Curran, associate general counsel for the University of Arkansas System, testified that opposing counsel had filed Freedom of Information Act requests for information that would otherwise be privileged.

But when asked by Rep. Justin Gonzales, R-Okolona, Curran said he did not know how exactly the university responded.

“He asked that question, and I didn’t know,” Curran told a reporter after the meeting. Some emails were turned over in response to one request. He said he was unsure if depositions were turned over.

Brad Phelps, general counsel for the Arkansas State University System, testified in favor of the bill but said he didn’t know of any such incident affecting the system.

University officials, including Phelps, helped write Ballinger’s amendment, according to emails obtained by the Arkansas Democrat-Gazette using the Freedom of Information Act.

Rita Looney, chief legal counsel of the Highway and Transportation Department, said she could not write down litigation strategy because she feared it would be requested. She did not name an example of when that information had been provided in response to a Freedom of Information Act request.

Open government advocates at the meeting said part of the reason they were opposed to the bill was because the university lawyers hadn’t demonstrated the need by sharing specific examples of the law being used against them.

Dan Greenberg, president of the Advance Arkansas Institute, said he had suggested bills to help state agencies get court orders to shield records more rapidly. The Freedom of Information Act already allows state agencies to seek court orders to shield the information.

“That was summarily rejected by one of the sponsors of this measure,” he said. “I really don’t think there is a problem that exists here.”

Greenberg said he suggested a second proposal to limit the exemption to litigation strategy.

“As far as I can tell, that’s also been rejected,” he said. “So I’m continually saddened and a little mystified as to, again, what problem we’re trying to solve here.”

Ballinger’s amendment shields records pertaining to both potential and ongoing litigation.

Ballinger’s changes included sunsetting the exemption to 90 days after the close of litigation and any associated appeal or one year after the date of the threat of litigation if no litigation is initiated.

He also defined threatened litigation to mean written or verbal communication that someone is likely to seek legal relief. Ballinger added a section, which will not be codified, to describe the legislative intent of the bill.

It states that it “is not the purpose of this act to exempt all communications between attorneys and clients, or all work produced by an attorney.”

On another bill related to the Freedom of Information Act, the House State Agencies and Governmental Affairs Committee declined to recommend approval that would extend the three-day period for responding to requests under the law to up to 15 business

Open government advocates at the meeting said part of the reason they were opposed to the bill was because the university lawyers hadn’t demonstrated the need by sharing specific examples of the law being used against them.

days if the production of the requested record would be “unduly burdensome” to the governmental entity maintaining the record.

No one on the committee made a motion to endorse House Bill 1622 by Rep. Bob Johnson, D-Jacksonville.

Johnson said that “this is just dealing with super large, super big requests.”

Adam Fogelman, an attorney for Pulaski County, said that “what we are trying to accomplish is not take more than three days, but to recognize that in some instances, in rare instances, three days is simply insufficient without necessarily diverting the resources of the government body that has been requested to respond.”

But Joey McCutcheon of Fort Smith told the committee that “my concern is that it gives some kind of subjectivity to government bodies, whereas now we have a hard and fast three-day rule, which is the way it should be.”

“We the people should be able to get the records within three days,” he said. “This is not about the media. It is about everyday citizens.”