House OKs bill shielding at­tor­ney records

Northwest Arkansas Democrat-Gazette - - VOICES - BRIAN FANNEY

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

Se­nate Bill 373 — which was rewrit­ten with an amend­ment by Rep. Bob Ballinger, R-Hindsville — was ap­proved in a 53-13 vote. It heads next to the Se­nate Com­mit­tee on State Agen­cies and Gov­ern­men­tal Af­fairs for ap­proval of the amend­ment.

“The bill was broader and I agreed that it prob­a­bly needed to be nar­rowed down,” Ballinger said Mon­day. “We nar­rowed it down to as small as pos­si­ble to achieve the goal we have.”

He said it was aimed at solv­ing prob­lems for state at­tor­neys who might have to dis­close lit­i­ga­tion strate­gies to op­pos­ing lawyers un­der cur­rent law.

But open-gov­ern­ment ad­vo­cates say the bill goes far beyond Ballinger’s stated in­tent — even with the changes.

Dan Green­berg, pres­i­dent of the Ad­vance Arkansas In­sti­tute, had said he sug­gested bills to help state agen­cies get court or­ders to shield records quicker. 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,” Green­berg said. “I re­ally don’t think there is a prob­lem that ex­ists here.”

Green­berg also 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.

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

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