FOI under attack
It happens every time the Legislature goes into session. The forces with an interest in keeping government secret begin submitting bills that would not only amend the state’s model Freedom of Information Act (thank you, Winthrop Rockefeller and idealistic company) but gut it. Robert Steinbuch, the professor of law who literally wrote the book on Arkansas’ FOIA statute, warns that a couple of proposals now before the Legislature “might seem reasonable. But they’re really about protecting bureaucrats at the expense of the taxpayers.”
Tom Larimer, executive director of the Arkansas Press Association, says the organization is against changing current law because the change would allow public agencies “to potentially run any record by their attorney” and then assert “attorney-client privilege” to declare the record of its actions secret. Indefinitely. Of one such attack on the press and public right to know, he adds: “Its potential for unintended consequences is enormous.” Oh, that should be the motto of any legislature.
Mr. Larimer adds that in all his 13 years as director of the press association, he’s never seen so many bills aimed at weakening the Freedom of Information Act, and that many “are so broadly written that they are so open to interpretation. It’s a bad way to make law.” But a fine way to keep public and press in the dark.
Bart Hester (R-Secrecy) now says he’ll look into the whole subject, now that the public knows what’s going on, though he would have been better advised to look before he leapt into this fray. “There are few things that keep public officials accountable like a FOIA does. My goal is to be able to let our governmental agencies have a fair day in court.” But as written, his bill would give those agencies an unfair advantage over the mere public, not just the inky wretches of the press.
A spokesperson for the University of Arkansas system, Nate Hinkel, was quick to take the academic bureaucracy’s side against the people and press: “Bottom line is that we support this bill because we believe this legislation would for fair representation of public entities by their attorneys.” Translated from the bureaucrat-speak, Mr. Hinkel is in effect saying the public be damned— even if he points out that not just the people of Arkansas are victims of similar laws, for “46 other states provide exemptions related to litigation records, attorney-client communication or attorney work product.”
Allow us to rejoin: So what? If 46 other states have chosen to keep the public out of the public’s business, that only gives Arkansas the distinction of being a leader in protecting the public rather than another member of the bleating herd. For it’s not a bad thing to set a shining example. Or as Professor Steinbuch puts it:
“Government attorneys work for the people. This bill prevents, among other things, the people from seeing what’s going on regarding perhaps the most important issues of government, when they’re in litigation. Moreover, government bureaucrats will use this to hide vast amounts of information by simply running everything through their attorneys.”
If they can, you can bet they will. Eventually. This bill has already zipped through the state Senate, while another proposal to punch a hole in the FOIA is ready to go. Currently the law requires government agencies to respond to requests for information at once, but allows them to wait for up to three days if the records requested are in use or in storage. But in addition to everything else in this FOI attack, another proposed change would allow the public agency to put off letting the public in on its decisions if the request for information is large, complicated or just “unduly burdensome.” It’s a license for the old-fashioned runaround in government. What less than the most conscientious public employee hasn’t found a request unduly burdensome? Or at least inconvenient.
Current law allows a public agency to go to court in order to get more time to meet a request from public or press, but this bill would require the taxpayer, who is not a lawyer and often cannot afford to go to court, to do so—effectively killing the public-records request, says Professor Steinbuch and anybody who knows anything about government.
These days a responsible, law-abiding citizen needs to keep not only his guns under lock and key but his basic rights, including the right to know what his government is planning to do to him next.
Stop this nonsense.