State panel opposes revival of failed bills

The Arkansas Freedom of Information Task Force decided Monday it opposed reintroducing in the next legislative session two bills that failed in 2017.

The legislation that got the heaviest look by the committee — with nearly an hour and a half of debate — was a bill put forward by state Sen. Bart Hester, R-Cave Springs, to exempt attorney-client communications and attorney work product from the state’s public record law.

Hester’s bill, Senate Bill 373, passed in both the House and Senate in 2017, before an amended version failed in the Senate.

The bill was sought by the University of Arkansas System and other public university systems, which claimed opposing lawyers were using the public records law to gain an advantage by requesting legal strategies and other communications developed by attorneys working for the state institutions.

By filing its own Freedom of Information Act request, however, the Arkansas Democrat-Gazette found state universities had responded to no such requests over a two-year period.

Hester didn’t attend Monday’s task force meeting. A spokesman for the UA System said the system wasn’t seeking a reintroduction of the legislation during the 2019 regular session. The session begins Jan. 14.

Still, the system’s general counsel and vice president for university relations were on hand Monday to defend the need for such legislation.

University General Counsel JoAnn Maxey said while she couldn’t point to a single instance in which a public records request affected the outcome of litigation, she said the threat of such requests caused attorneys at the university and other public offices to change their work habits by not drafting written memos or strategy pieces that could be requested.

Rusty Turner, editor of the Northwest Arkansas Democrat-Gazette, testified the legislation was “far too broad and risks concealing all kinds of records from the public.”

He noted as written, the legislation would have allowed an agency to keep a record secret by stating the document was merely related to the threat of litigation.

The task force agreed by a voice vote to oppose the measure. No one voiced support.

The task force also voted to oppose House Bill 2195, a failed 2017 bill that would have ended the requirement for state agencies to provide public records in a format other than online, if the requester asks for the document in another medium. No one spoke in support of that measure.