Enshrining FOIA
Pros and cons of law in Constitution
Arkansans have enjoyed a strong “right to know” about what public officials are doing with our tax dollars since 1967. But should that right be enshrined in our state Constitution?
Currently, the Arkansas Freedom of Information Act (FOIA) is a law just like any other law, meaning a simple majority of the Legislature can alter it. There is currently a movement to put the language of FOIA in the Constitution. What are the benefits and potential drawbacks of this change?
FOIA (currently a statute) is a law aimed at ensuring access to information so that the people can participate in governance and public officials are held answerable to the people. It centers on two core principles: open records and open meetings, emphasizing government transparency.
Enshrining FOIA into the state Constitution would safeguard its provisions from legislative changes that might diminish its effectiveness. This guarantees the people a stronger right to access government information and meetings, as constitutional provisions bear the weight of fundamental rights. Failure to uphold these rights could lead to severe consequences, including civil and criminal liability for public officials.
A few weeks ago, the proponents of the initiative to embed FOIA into the state’s Constitution sought citizens’ input on an initial proposal. Town hall meetings were conducted in various cities, including Little Rock, Conway, Fort Smith, and West Memphis.
The public response from the town hall meetings highlighted both the effectiveness and imperfections of FOIA. Feedback received suggested that before the September 2023 special session, during which exemptions addressing executive safety and security were introduced, altering the FOIA landscape, FOIA was not perfect but was effective.
Advocates of the proposal argue that the proposal to embed FOIA in the Constitution will bolster transparency, accountability, and democratic values. On the other side, opponents of the proposal raised concerns about the impracticality of the amendment, potential rigidity, and risk of misuse of FOIA.
In response to town hall feedback, a second proposal is circulating with two measures:
1. A constitutional amendment to enshrine citizens’ right to government transparency, requiring public approval for laws reducing transparency, and allowing the state to be sued for noncompliance.
2. An initiated act: a citizen-driven initiative through popular vote to establish a statute, the Arkansas Transparency Act, addressing specific government transparency details.
Both the constitutional amendments and the initiated act will undergo a formal process to get on the ballot. However, constitutional amendments are more rigorous, requiring a higher voter threshold. For initiated acts, a minimum of 8 percent of voters from the previous gubernatorial election (71,321 in 2022) must provide signatures, while constitutional amendments require at least 10 percent of voters (89,151 in 2022), with signatures from 50 counties (up from the current 15 per Act 236 of 2023).
In my view, both measures aim for three key objectives: establish an Arkansas citizen’s right to government transparency, revert FOIA to its pre-September 2023 special-session state, and define the parameters of a public meeting. Until now, Arkansas law lacked a specific definition for public meetings, as addressed in my April op-ed “What matters: Public meetings must be transparent” published in the Arkansas Democrat-Gazette.
Analyzing other states that have incorporated their FOI laws or have some presumption of openness of public records and meetings enshrined in their constitutions, such as Florida, California, Louisiana, Montana, North Dakota, Illinois, and New York, reveals that the proposed amendment brings both potential advantages and challenges.
On one hand, the constitutional protection of FOI in those states enhanced the public’s access to critical information, fostering an informed citizenry. It’s also essential to note that in most of these states, the constitutional provisions outline broad FOI rights, while the specific details are addressed in statutes. Arkansas would be following a similar pattern.
On the other hand, embedding FOI laws may cause legal complications and challenges. For example, in Florida, the constitutional provision for public access to records has led to disputes over access, causing legal battles and challenges in defining public information.
In California, the constitutional protection for FOI had major financial implications, increasing net state and local government costs by over $1 billion annually due to new FOI time-frames and record access requirements
The ongoing debate on enshrining FOIA in the state Constitution makes clear that there will be consequences and implications either way, emphasizing the need to weigh the advantages and drawbacks carefully. Considering the possibility of having the proposal on the ballot and allowing the people to have their say seems worthwhile.
As we navigate this complex path, it’s crucial to keep in mind the overarching goal: to establish a government that remains accountable, transparent, and responsive to the diverse needs of its citizens.