Lawmakers Offer Narrower Change to Arkansas FOIA After Bipartisan Pushback

Jimmie Cavin, right, is escorted from the senate state agencies & governmental affairs committee meeting by a state capitol police officer after being told to leave by committee chairman Senator Blake Johnson. Cavin was expressing his opposition to SB9, which would make changes to the state’s FOI law. Cavin and Johnson exchanged heated words before Cavin was asked to leave. John Sykes/Arkansas Advocate 09/12/2023

by Tess Vrbin, Arkansas Advocate

After two days of bipartisan backlash against proposed changes to Arkansas’ Freedom of Information Act, lawmakers late Tuesday filed narrower legislation to exempt information related to security services provided to the governor and other state officials.

It’s the third attempt in as many business days to alter the state’s 1967 public records law.

The first version of the legislation, filed Friday upon Gov. Sarah Huckabee Sanders’ call for a special legislative session this week, did not have enough support to advance in the House or Senate on Monday.

A second bill filed Monday night met opposition from nearly two dozen people Tuesday in a five-hour hearing before the Senate Committee on State Agencies and Governmental Affairs, which did not vote on the bill.

Both versions would have added four exemptions to the FOIA, with the second bill trading one exemption for another.

The most recent legislation, House Bill 1012 and Senate Bill 10, would exempt records and communications concerning the planning or provision of security services provided to the governor and other state elected officials.

Sanders called the provision “the most critical and important aspect of FOIA reform” in an emailed statement via her spokesperson, Alexa Henning.

“Nobody said changing the status quo would be easy, but this is a great starting place for making our government safer and more effective,” Sanders said.

Some transparency advocates, including the Arkansas Press Association, welcomed the narrowed-down bill, but others said the proposal remained overly broad and unnecessary.

Senate Bill 9, the proposal discussed in Tuesday’s committee hearing, would also have exempted:

  • Records prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission in anticipation of litigation or for use in pending litigation.
  • Records created or received by an elected or appointed state officer, a state employee, or a state agency, board, or commission that would be covered by attorney-client privilege.
  • Records reflecting communications between the governor’s office and any cabinet secretary

The legislation filed last week did not include the exemption for communications between the governor and cabinet secretaries. It instead would have exempted records revealing the deliberative process of state agencies, boards, or commissions.

Sanders previously touted all of the proposed exemptions as a boon to government efficiency and the safety of her family.

Progressive and conservative political voices, as well as nonpartisan First Amendment advocates, publicly opposed the first two bills, saying both would deny Arkansans the right to access information about government officials’ conduct.

“Our government needs to be more transparent to our citizens, not less transparent,” said Lorri Justice, a former Republican candidate for the Pulaski County Quorum Court. “We’re the taxpayers, this is our money, and I keep hearing talk about the governor — with all due respect, y’all don’t work for the governor. We elected you to represent us.”

Debate at times became heated between the bill’s opponents and one of its supporters, committee chair Sen. Blake Johnson, R-Corning. Johnson dismissed FOIA advocates Joey McCutchen and Jimmie Cavin from their testimony, with the latter being escorted out of the room by Capitol police.

“You’re taking away people’s rights and you’re being a bully,” Cavin said before leaving.

Government security

Three of Sanders’ cabinet members and a private security contractor spoke for Senate Bill 9 on Tuesday, calling it necessary to prevent knowledge of security protocols for the governor and first family from being available to bad actors.

Sanders needs more protection than previous governors, partly because she has three minor children and partly because she is “a polarizing figure,” said Mike Hagar, secretary of public safety and director of the Arkansas State Police.

Sanders said last week that the proposed FOIA changes weren’t in response to any one person or instance, but the session comes after Little Rock attorney and blogger Matt Campbell of the Blue Hog Report filed a lawsuit against Arkansas State Police last week for failing to provide a number of records related to Sanders’ and her family’s use of ASP aircraft.

Campbell has recently been scrutinizing and reporting Sanders’ use of the plane for in-state travel. Many of the records Campbell is seeking from ASP would be explicitly shielded from the public under the first two bills proposed.

The lawsuit will have its first hearing in Pulaski County Circuit Court on Thursday.

Hagar insisted to the committee that ASP has nothing to hide about Sanders’ use of resources, and he accused Campbell of trying to “manipulate information to embarrass the governor or to use as political leverage.”

Finance and Administration Secretary Jim Hudson and Inspector General Allison Bragg also spoke in favor of the bill. So did Doug Elms, a former Little Rock police officer who is now a consultant with the Rogers-based Safe Haven Security Group.

However, the witnesses for the bill only spoke in favor of the security exemption, not the other three exemptions, noted Bill Kopsky, director of the Arkansas Public Policy Panel.

Dean Travinski, news director at the KARK and FOX 16 broadcast outlets, said he knew from his experience as a journalist that governors’ security plans are already exempt from FOIA because he has requested them in several states and never received them.

Senate Bill 10, filed Tuesday night, has 24 Senate cosponsors in addition to lead sponsor Sen. Bart Hester, R-Cave Springs. Hester is also Senate President Pro Tempore and a member of the State Agencies committee.

The bill needs 24 votes, or two-thirds of the Senate, in order to go into effect immediately upon the governor’s signature.

The new bill has been referred to the State Agencies committee, which is scheduled to meet at 9:15 a.m. Wednesday.

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