3 laws add se­cu­rity-data shields

In ses­sion, 10 mea­sures re­gard­ing public records ap­proved

Arkansas Democrat-Gazette - - FRONT PAGE - LISA HAMMERSLY

Be­fore Arkansas law­mak­ers left Lit­tle Rock on Mon­day, they ap­proved at least 10 amend­ments to the state’s 50-year-old Free­dom of In­for­ma­tion Act.

Three pre­vent the public from learn­ing se­cu­rity in­for­ma­tion that has been avail­able for years about agen­cies such as the State Capi­tol Po­lice, public schools and uni­ver­si­ties, and the Gov­er­nor’s Man­sion.

Arkansas Free­dom of In­for­ma­tion Act ex­perts and watch­dogs say they worry how far the new se­crecy will ex­tend.

Se­cu­rity-records clo­sures in some cases “were not bad ideas. Un­for­tu­nately, the bills went way too far by clos­ing ‘records and other in­for­ma­tion,” said Arkansas Press As­so­ci­a­tion Ex­ec­u­tive Di­rec­tor Tom Larimer.

That phrase could be broadly in­ter­preted, he said, to in­clude “just about any­thing” per­tain­ing to the agen­cies. His group op­posed all three bills.

“I don’t think there is any doubt the ‘se­cu­rity’ bills passed in this ses­sion will

have the most im­pact on the FOIA go­ing for­ward,” Larimer said.

Law pro­fes­sor and Free­dom of In­for­ma­tion Act text­book au­thor Robert Stein­buch points to one of those new laws — Se­nate Bill 131, now Act 474 — that ex­empts dis­clo­sure of se­cu­rity records of the State Capi­tol Po­lice.

Stein­buch sees the lan­guage as “some­what too gen­eral” with “the po­ten­tial to sweep up records the leg­is­la­tors likely didn’t con­tem­plate.”

Sen. Gary Stub­ble­field, R-Branch, spon­sored two of the se­cu­rity bills, in­clud­ing the Capi­tol Po­lice ex­emp­tion.

He told law­mak­ers they were de­signed to keep crim­i­nals from re­quest­ing se­cu­rity plans to plot an at­tack.

Chris Pow­ell, spokesman for the Arkansas sec­re­tary of state’s of­fice that over­sees the Capi­tol Po­lice, said he was frus­trated that some news re­ports had said the bill could ex­tend fur­ther, such as re­strict­ing of­fi­cers’ pay in­for­ma­tion. That’s not true, Pow­ell said.

Records re­quests by the Arkansas Demo­crat-Gazette last week, how­ever, sug­gest the new law opens de­bate over what an agency is per­mit­ted to keep se­cret for se­cu­rity rea­sons, and what tax­pay­ers have a right to know.

Asked if Act 474 would al­low the public to ob­tain a copy of a Capi­tol Po­lice lock­down plan, Pow­ell said that’s the kind of record the new law shields. His agency wouldn’t pro­vide it.

Asked whether the public could learn how many of­fi­cers make up the Capi­tol Po­lice force — in­for­ma­tion that might be con­sid­ered im­por­tant for se­cu­rity, but nec­es­sary to ex­am­ine an agency’s bud­get — Pow­ell sent an Arkansas Demo­crat-Gazette re­porter to a state gov­ern­ment web­site. Trans­parency.Arkansas.gov lists state em­ploy­ees, their ti­tles and other in­for­ma­tion.

When the re­porter asked Pow­ell to ver­ify a count of about 22 Capi­tol Po­lice of­fi­cers, he replied that was “ap­prox­i­mately cor­rect, and I un­der­stand this is public in­for­ma­tion.”

“How­ever,” Pow­ell wrote in an email, “I don’t think that widely pub­lish­ing the num­ber of se­cu­rity per­son­nel guard­ing a vi­tal gov­ern­ment fa­cil­ity is par­tic­u­larly help­ful to the se­cu­rity of that fa­cil­ity.”

Arkansas’ Free­dom of In­for­ma­tion Act, Arkansas Code An­no­tated 25-19-101, re­quires state and lo­cal gov­ern­ments to dis­close most records of their oper­a­tions upon re­quest from any mem­ber of the public.

When some­one asks how much his town pays the mayor, Arkansas’ public-records law makes it a crime for town record keep­ers to refuse. When a news­pa­per re­porter asks for a univer­sity chan­cel­lor’s emails re­gard­ing a head foot­ball coach, school of­fi­cials have to hand them over or risk jail. The act also con­tains ex­emp­tions.

Arkansas’ Free­dom of In­for­ma­tion Act is “a very good law to be­gin with,” said Stein­buch, a pro­fes­sor at the Univer­sity of Arkansas at Lit­tle Rock’s W.H. Bowen School of Law.

He doesn’t op­pose “nar­rowly crafted, well-thoughtout ex­emp­tions,” he said.

He pointed to House Bill 1236, now law as Act 531, that ex­empts public dis­clo­sure of au­dio and video record­ings of a po­lice of­fi­cer’s death. That amend­ment is nar­rowly writ­ten and un­likely to be abused, Stein­buch said.

Gen­er­ally, “I am hes­i­tant in want­ing to change what is an out­stand­ing law, due to the risk of un­fore­seen con­se­quences,” he said. “The dan­ger with a tweak is not the tweak it­self, but pok­ing enough lit­tle holes into the FOIA that it even­tu­ally starts to fall apart.”

In ad­di­tion to ex­cep­tions for se­cu­rity and law en­force­ment agen­cies this leg­isla­tive ses­sion, other changes to the law in­clude at least two re­lated to In­ter­net records.

House Bill 1623 al­lows lo­cal gov­ern­ments to re­spond to a records re­quest by point­ing to in­for­ma­tion posted on­line, un­less the re­quester spec­i­fies a dif­fer­ent record for­mat. State agen­cies al­ready are per­mit­ted to do so.

Stein­buch said the In­ter­net-records amend­ments don’t change gov­ern­ment agen­cies’ re­spon­si­bil­ity to pro­vide spe­cific in­for­ma­tion that’s us­able.

If the re­quested records are posted separately and pre­cisely on­line, “it seems per­fectly ap­pro­pri­ate to di­rect” the public there, he said.

But if agen­cies are dump­ing “vast amounts of doc­u­ments that are not read­ily search­able, and the agency says, ‘It’s in there some­where,’ — that runs counter to the in­ten­tions of those who drafted the FOIA,” Stein­buch said.

Some good news this leg­isla­tive ses­sion, Stein­buch added, is that two bills that he and oth­ers said would have se­ri­ously dam­aged the Free­dom of In­for­ma­tion Act didn’t pass.

Se­nate Bill 373, to ex­empt from public dis­clo­sure records of at­tor­ney-client com­mu­ni­ca­tion, and House Bill 1622, to ex­tend the time pe­riod gov­ern­ment agen­cies have to an­swer records re­quests “were bad on their face,” he said.

Those bills would have al­lowed gov­ern­ment of­fi­cials to hide vast num­bers of records un­der an at­tor­ney-client priv­i­lege claim, and de­lay in­def­i­nitely pro­vid­ing records to the public, Stein­buch said.


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