Sanders’ plans to reform the state’s Freedom of Information Act have hit a snag

Arkansas Gov. Sarah Huckabee Sanders’ plan to reform Arkansas’ Freedom of Information Act, expanding the type of documents that can be kept from the public, hit a snag on Monday.

Plans to hold a hearing on the bill in a Senate committee on Monday evening fizzled after House efforts faltered in the morning as lawmakers met for the first day of the special session.

The Republican governor invited lawmakers to the Capitol for a special session to discuss bills that would reform the state’s open records law, cut income taxes and ban COVID-19 vaccine mandates for government workers.

But while bills to cut tax rates and ban vaccine mandates sailed through Senate committees on Monday, legislation to reform Arkansas’ law on public disclosure and open meetings faltered.

(Document: Read House Bill 1009 »

Lawmakers introduced two companion bills on Friday, House Bill 1003 and Senate Bill 7, that would allow government officials to protect an expanded list of government records from public disclosure. Specifically, the bill would add a “deliberative process” exception to the FOIA that would include any government documents that “form part of the process by which governmental decisions and policies are formulated.”

The bill, which Sanders said is a measure to protect sensitive information about security details from records requests, would exempt records “that reflect the planning or provision of security services provided” to constitutional employees. However, with lawmakers dissenting Monday, Senate President Bart Hester, R-Cave Springs, said senators are working on a new, updated bill that would address concerns about the bill.

Hours after the Senate adjourned late Monday afternoon, a new bill had yet to be introduced, with a crowd of people in the Capitol hearing room anxiously waiting to give their comments on the bill. At approximately 7:15 p.m., Hester informed the audience that a new bill had not yet been introduced and the planned hearing had been cancelled.

“She’s not ready,” Hester said. “We simply don’t have a finished product to hear.”

Hester’s announcement led to a back-and-forth with the public, who rebuked him for supporting the bill and pleaded with Hester to postpone the Senate vote so that the public would have time to read the new bill. Hester said he wanted to give the public a chance to talk about the bill, and he came to the committee room to provide some transparency about the law-making process.

“I had over 18 Republicans to pass this bill past us today. And I still do now, the original bill,” Hester said.

While it is unclear whether there are enough votes to advance the bill beyond the Senate Committee on State Agencies and Governmental Affairs, Hester has said multiple times that he has a Senate majority ready to vote in favor of the legislation. Lawmakers worked to craft a new bill, taking input “mostly from the people in this room,” Hester said.

“But this is a product of people in this room continuing to influence this bill, and that should make you happy, right? That’s OK,” he said.

Sanders met privately late Monday morning with the Senate Republican caucus for about 30 minutes. Asked if she was open to making changes to the bill, Sanders said: “We will keep you posted.”

Things were no less chaotic in the House, where the chamber conducted little business on the first day of session, as repeated attempts to suspend some of the chamber’s rules failed.

Rep. Diane Foote, R-Horatio, introduced three proposals to suspend rules on the minimum amount of time a fiscal impact statement needs to circulate, the number of times bills must remain on the desk before they are passed, and the time notices needed before a committee meeting.

After a vote to suspend some House rules failed, House Speaker Matthew Shepard, R-El Dorado, pushed the chamber into recess so he could set a new schedule for the special session. After a short break, the House again tried to change the rules, this time with Rep. John Eubanks, R-Paris, asking members to overturn their previous vote, which failed again.

(Document: Read Senate Bill 9 »

Because there have been no rule changes, House committees have not met, Shepherd said.

Arkansas House Majority Leader Marcus Richmond of Harvey said the House Republican Caucus met with Sanders on Monday morning.

Some caucus members had questions about how Sanders’ open records bill would affect the state’s Freedom of Information Act. Most of the questions relate to the deliberative process and the attorney-client privilege provisions in the bill, Richmond said.

When asked Monday morning whether he thought the bill had enough votes to pass, Richmond said, “I can’t make the call.”

“There is a lot of opposition, some of which is very specific to the members and the area they have,” he said. “I always told caucus members that you have to vote in your district.”

Unlike the House, the Senate voted to suspend some of its rules, something Hester told the crowd in the committee room was “pretty standard in the special session process.”

“No, it’s not,” his colleague, Republican Sen. Brian King of Green Forest, interrupted. Hester King then asked if he would like to answer questions instead and left the committee room.

“This is not a transparent process,” King said.

Also Monday morning, the Arkansas Freedom of Information Act Task Force voted unanimously to oppose the bill. The task force, which was created through legislation in 2017, met via Zoom to hear public comments and vote on the recommendation.

“What this will do is deny citizens the rights they have had since 1967 to see that deliberative process,” Jimmy Cavin, a self-described freedom of information advocate, told the task force.

Sanders plans

Sanders announced plans for her own session on Friday, including her plans to change Arkansas’ Freedom of Information Act, which some consider one of the most disclosure-oriented laws in the country.

Sanders said the law, passed in 1967, was in desperate need of updating, and she was concerned about the disclosure of documents related to her security detail.

Matt Campbell, an attorney and author of the Blue Hog Report blog, has filed a request for records from the Arkansas State Police about how much the agency spent to protect Sanders. According to his lawsuit, Campbell received some records, including documents showing that the state police hired private pilots to fly the governor, but also requested other documents that the state police refused.

Campbell also requested records about the agency’s spending when state police accompanied Sanders on a trade mission to Europe in June, including the costs of plane tickets and hotel rooms for her protection.

Sanders said the proposed changes to the Freedom of Information Act would bring Arkansas in line with the federal government and states like California, New York, Alabama and Oklahoma. The bill would also have required state police to issue quarterly reports to lawmakers listing total expenditures for the governor’s protection detail. However, it said on Friday that some documents related to its security, such as those relating to “sources, methods and patterns”, should be exempt.

When asked about Campbell’s request for the records, Sanders said the bills to amend the Arkansas Freedom of Information Act do not relate to “a specific person.”

As for relieving state government from the deliberative process, Sanders said it is necessary to make government more efficient.

“Currently, a Chinese-owned government company operating in Arkansas can use its FOIA staff to obtain internal government documents,” she said Friday.

The bill would also exempt records prepared by an attorney representing the state, something the bill’s sponsor, state Rep. David Ray, R-Momelle, said would protect attorney-client privilege. The bill would also make it more difficult for those who sue local governments under the Freedom of Information Act to recover legal fees.

Currently under the FOIA, courts assess attorneys’ fees for plaintiffs if they receive a significant portion of their records request for lawsuits against local government agencies. The bill provides that a court may assess attorneys’ fees for plaintiffs who “substantially prevailed,” or if the defendant’s position was “arbitrary or in bad faith.”

Information for this article was contributed by Michael R. Wicklin and William Langhorne of the Arkansas Democrat.

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