Open-records exemptions stir concern but advance

Open-government advocates expressed concerns about new exceptions to the state’s Freedom of Information Act in a House committee Wednesday, saying one proposed bill would give agencies broad leeway in making documents secret from the public.

Both pieces of legislation to create exemptions from the public disclosure law, Senate bills 131 and 373, were approved by the House State Agencies and Government Affairs Committee on Wednesday, sending the proposals to consideration in the House.

The exemption sought under SB373 would prevent records constituting attorney-client communication and attorney litigation documents from disclosure.

Such protection is needed, two lawyers for state universities told the committee, to prevent opposing counsel from requesting access to notes and other legal materials while in litigation against state agencies.

But opponents argued that the bill could also allow agencies to make any record secret simply by making sure it passed in front of a lawyer.

After the Arkansas Press Association, the trade association for the state’s 120 newspapers, expressed concerns about the bill, lawmakers met with the House sponsor, Rep. Andy Davis, R-Little Rock, and the higher-education attorneys to come up with an amendment adding the word “privileged” in between “attorney client” and “communications.”

But when the meeting resumed later in the afternoon, press association Executive Director Tom Larimer said he had not been involved in the lunchtime talks and still had concerns about the bill.

“I don’t know if it fixes or solves our concerns or not,” Larimer said.

Committee chairman Rep. Bob Ballinger, R-Hindsville, said he was surprised as an attorney when he first joined the Legislature to learn that the Freedom of Information Act did not have an exception for the type of communication he said he often used in court cases. Other states with so-called open-records laws have such protections, he said.

Dan Greenberg, a former Republican state representative who spoke against the legislation, said Arkansas’ Freedom of Information Act should not be tailored to what other states are doing.

“Arkansas is going to go from one of the best FOIA laws to one of the worst,” Greenberg said.

The Arkansas Bar Association is open to protecting litigation materials and work product from disclosure, but President Denise Garner said SB373 was “too broad.”

Her husband, Glen Hoggard, testified against the amended legislation Wednesday afternoon, calling for more narrow language.

After hearing the testimony, the committee approved the bill on a voice vote, with several audible “nays.”

Earlier in the day, the committee also recommended passage of SB131 by Sen. Gary Stubblefield, R-Branch.

The legislation would exempt records or other information related to the State Capitol Police “that upon disclosure could be reasonably expected to be detrimental to the public safety.”

In addition, the bill would exempt personnel records, risk assessments, safety plans and studies, among other documents.

Stubblefield told the House committee that “it’s a safety and security bill.”

Stubblefield said one the reasons that he proposed the legislation was a story that ran on the front page of the Arkansas Democrat-Gazette in December of 1998, with a graphic inside describing an escape route for then-Gov. Mike Huckabee that was devised through an old dumbwaiter shaft.

Larimer told the House committee that he has no qualms with protecting security plans.

“My concern with this bill is that it closes to public scrutiny a tax-supported, publicly-paid agency of state government,” Larimer said.

The bill “could be construed to be anything [information] well beyond the security plans,” he said. “Our concern here is this has the potential … of closing to public scrutiny records that are open for a reason,” Larimer said.

“The FOI has been a terrific tool for the people of Arkansas. It has helped keep government open and transparent. It has helped facilitate the exposure of corruption,” he said.

Rep. Trevor Drown, R-Dover, said that “we live in a different world and this is a treasure-trove to somebody who is setting up targeting a package if indeed they deem this target softer than the other states.”

“When it comes to the security protocols that are used within this Capitol … regarding Legislature, the governor or anybody else I don’t think those should be privy to the public eye because we are talking about the safety of not only those folks I mentioned, but those folks who come to visit the Capitol,” he said.

Having passed in the Senate, SB131 could reach Gov. Asa Hutchinson’s desk with approval by the House. Because it was amended by House lawmakers, SB373 must head back to the Senate if it passes the lower chamber.