The proponents of the bill to castrate Arkansas’s Freedom of Information Act make several incorrect claims.
False claim 1: The FOIA hasn’t been updated since its creation.
Actually, our Governor signed 10 bills into law this last legislative session alone updating the FOIA. And this has occurred virtually every session.
Moreover, in 1999, then-Governor Mike Huckabee–our very Governor’s father–created the Electronic Records Study Commission to update the FOIA to account for email and all other electronic records. The Legislature enacted the vast majority of the Commission’s recommended updates.
False claim 2: Because the “deliberate-process privilege” in this bill mimics the federal FOIA, it’s great.
Since when did conservatives look to Washington D.C. for guidance? Have you ever heard a conservative Arkansas politician promise you, “I’ll bring more D.C. to Arkansas”?
The proponents of this bill also say it’s similar to the law in California and New York. Is that really a selling point?
First, it’s critical to note that the Governor already gets to communicate with her cabinet without any FOIA concerns whatsoever. She has the Governor’s “working papers exemption.” The deliberate-process privilege is solely about state agency staff communicating with each other and the public.
And, the deliberate-process privilege is why the federal FOIA generally is considered toothless. The exemption precludes disclosure of all records created before a state agency releases a policy proposal.
But I for one want to know which lobbyists have the ear of agency bureaucrats. And I want to be able to comment before the bureaucrats decide my rights–not after.
Moreover, the deliberate-process privilege cedes authority from the Legislature to executive agencies. We see this currently in D.C. where the Biden administration refuses to give records to Republican congressional committees. And those committees can’t use the FOIA to get the records.
Right now when the Arkansas Legislature seeks records from agencies, these agencies comply knowing the FOIA requires it. Without this tool, only the subpoena power applies, and that is almost never available.
The federal FOIA–like so much that comes from northeast elites–is designed to benefit the administrative state, not the people.
False claim 3: “Weaponization” of the FOIA warrants this response.
If some use the FOIA in an unintended fashion, the solution isn’t to punish all Arkansans seeking transparency properly. Do these conservatives support assault-weapon bans, gun control, and red-flag laws because of school shootings? No.
Congratulations supporters of this bill–you’ve found common cause with the far left anti-gun crowd!
False claim 4: Exempting “attorney-client privileged” records from disclosure under the FOIA benefits Arkansas.
Actually, including the attorney-client privilege in the FOIA will allow the government to hide wrongdoing because once lawyers get involved, everything is exempt from disclosure. This is another Sandusky-molestation scandal waiting to happen to our children. Whoever votes for this bill can explain the inevitable results to their constituents and God.
Recall my exposé of Central Arkansas Library System, which I was only able to make because I obtained records pursuant to the FOIA? Those damning records were attorney-client communications. If the same wrongdoing happens at the state level after this bill passes, we’ll get zilch! Unless you think that all wrongdoing only occurs at the local level, this exemption is really bad for Arkansas. (And if you think all corruption is only local, I’ve got a bridge for sale for you.)
The state needs to continue to forgo a little “efficiency” so we can prevent or expose wrongdoing. An unchecked government is inherently dangerous.
False claim 5: Eliminating the current provisions in the FOIA awarding attorney’s fees to citizens who sue and win after bureaucrats deny records requests is good government.
Actually, it’s good FOR government and bad for Arkansans. If bureaucrats don’t give over records they’re required to, why should the citizens who are forced to sue AND WIN have to pay attorney’s fees?
Many sponsors of this FOIA bill also support “tort reform” requiring losers to pay the winners’ attorney’s fees. So, these legislators want you to pay the other side’s attorney’s fees if you lose a malpractice lawsuit against a hospital, but they don’t want the government to pay you if the government loses a FOIA lawsuit you brought. How’s that fair? It’s not.
Btw, some have claimed I received $20,000 in fees for a FOIA case I lost while charging $1,000/hr. Every bit of that is false.
■ I’ve never received $20,000 in fees for any FOIA case. Ever. In my entire career, I’ve received a few thousand dollars in attorney’s fees in total for FOIA cases.
■ I’ve never received any fees for a case I lost. Nobody ever has. Whoever said otherwise is clueless.
■ I’ve never charged the government $1,000/hr. (even though I would deserve every copper penny of it!). Nobody ever has. The little bit that I got was at $250/hr.
I remember when a former Arkansas governor convinced a gaggle of Democratic legislators to vote for a foolish bill that helped his career but not the careers of those legislators.
That bill was the assault-weapons ban. That former governor was then-president Bill Clinton. The result for the lemming legislators was that more than 50 of them lost their seats.
But Bill Clinton surely kept his office and was reelected after he conscripted these legislators to do his anti-gun bidding. Clinton paid lip service to those in the political graves he dug. I’m sure that came as no solace to those former politicians looking up at Bill’s boot heels.
Republicans who vote–with no serious deliberation during a special session–to castrate one of the best FOIAs in the country, simply to benefit current bureaucrats with no eye on the future, do so at the expense of angering a highly motivated populist-conservative base that shows up in big numbers in primary elections.
But at least these legislators betraying their constituents will get a nice autopen-signed note from the Governor. Good luck with that.
Robert Steinbuch is the author of the treatise on the Arkansas FOIA and is on the legislatively created Arkansas FOIA Taskforce. His views don’t necessarily reflect those of his employer.
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