House OKs bill shielding attorney records

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.”