In Defense of Our Right to Know

By Sarah Holden

Disclaimer: The views expressed in this post are those of the author, and do not necessarily
reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

In 1978, the Supreme Court in NLRB v. Robbins Tire & Rubber Co. explained that one of the fundamental purposes behind Freedom of Information Act (FOIA) laws is to serve as a much needed “check against corruption,” because more transparency helps ensure better accountability. Although the dispute in NLRB concerned the applicability of federal FOIA laws (5 U.S.C. § 552), all fifty states have since adopted their own FOIA laws, even if by a variety of different names.

Arkansas politics recently made national headlines after the state’s Republican Governor, Sarah Huckabee Sanders, accused taxpayers of taking advantage of Arkansas’s FOIA laws to “waste taxpayer dollars, slow down our bold conservative agenda and, frankly, put my family’s lives at stake.” This last reason—safety concerns over her family—was the pretextual basis for the Governor giving lawmakers and the public a scant three days’ notice of the special legislative session that convened on September 11, 2023.

The Governor outlined nine ballot measures that she wanted the General Assembly to address during this special session, among which included income tax breaks and a prohibition against mandating COVID-19 vaccines, in addition to the changes to Arkansas’s FOIA law.

Changes to the Original Draft

For the FOIA amendments specifically, Gov. Sanders detailed six changes in the FOIA ballot measure she wanted to see adopted. If enacted, these changes would have altered Arkansas’s FOIA laws to:

# 1 Add additional exemptions for records related to the travel of the Governor and many of the other highest-ranking state officials;
#2 Remove the public’s access to records detailing the legislature’s deliberative process;
#3 Protect attorney work product and the attorney-client privilege of state entities;
#4 Extend existing exemptions under Ark. Code Ann. § 12-8-108(c) to the duties of the state police described in § 12-8-108(a) (pertaining to the security of the Governor, capitol building, and others);
#5 Restrict when attorney’s fees may be awarded in FOIA litigation; and
#6 Require the Arkansas State Police to provide quarterly expense reporting of the Executive Protection Detail, aggregated monthly.

While these six points are all reflected in the bill’s original draft, the version ultimately passed by the House and Senate a few days later is, fortunately, “drastically different” from the original proposal. One other key provision—retroactively applying the changes called for in #1 back to January 1, 2022—appears in both the original and final versions of the bill. Yet, of the six amendments the Governor originally sought, only half (#1, #4, and #6) survived, significantly lessening the scope of Gov. Sanders’s proposed changes.

Governor Sanders’s Swiss Cheese Narrative

Before the special session began, Gov. Sanders publicly stated that her attempt to overhaul Arkansas’s FOIA laws was primarily for personal reasons related to the safety of herself and her family. This justification seems innocuous, at least superficially. But would it not have been possible to instead impose a waiting period such that travel-related records would only be made available some number of days or weeks after the travel had concluded? Moreover, what level of safety is gained by making historical travel records—including the cost of such travel, which is borne by Arkansas taxpayers—unavailable in perpetuity?

Apparently, the Governor’s frenzied push to overhaul FOIA was not because anyone was requesting current, or even upcoming, travel plans. Rather, it came as a response to FOIA requests seeking to uncover records of past travel and associated expenses. In this context, the retroactive application of these amendments raises a new question: what is the purpose of extending the exemption to cover records dating back more than a year before Governor Sanders was sworn into office? As a result of the Governor’s rush to get this bill passed as part of the special session, maybe we’ll never know.

After the new FOIA amendments were signed into law, the Governor celebrated on X (formerly Twitter): “After months of bad actors weaponizing FOIA to attack our heroes in law enforcement, I was proud to sign a new law today with bipartisan support to empower our state police to do their jobs.” As many of the responses highlight (e.g., @ZackLayton4, @semtswife1, and @fines_no), this new narrative doesn’t seem to align with the Governor’s originally stated purpose—the safety of herself and her family.

Additionally, just how many FOIA requests does it take to “weaponize FOIA”? Five, apparently—and of those five, the first three were filed by a local attorney, Matt Campbell, while the other two were filed by reporters simply requesting to see Campbell’s three earlier requests. Of particular note, none of the FOIA requests received by the Arkansas State Police “came from the two men who’ve been arrested for making threats about Sanders and other Republican politicians.”

Among the records Campbell sought were details about how much money Arkansas taxpayers spent to send the Governor, her family, accompanying Arkansas State Police personnel, and unknown others to Europe this past June. The Governor has nevertheless claimed that her proposed FOIA amendments “went beyond ‘any one particular person.’” This seems, at best, disingenuous.

Checking Against Corruption

FOIA laws are rooted in the idea that the government should be accountable to the people it serves, and this accountability is achieved through requiring governmental transparency. Yet, according to the Governor, “They don’t care about transparency.” Presumably, “they” are Arkansas taxpayers who file lawful FOIA requests.

Setting aside the concerns about the Governor’s concealment of travel-related records and the host of abuses these new exemptions may allow, this is also not Gov. Sanders’s first attempt to exempt the deliberative process from FOIA disclosure. According to the Governor, “It is ridiculous to act as if this is some massive, radical change,” because the proposed language limiting the public’s access to the deliberative process would have supposedly mirrored federal FOIA laws. But is forcing Arkansans to rely instead on a court’s subpoena powers really a preferable alternative? And, if so—a better alternative for whom?

Arkansas’s FOIA laws have historically been some of the most citizen-friendly sunshine laws in the nation. However, we now risk eroding these protections down to the same “toothless” standards that exist at the federal level.

Attempting to explain why the originally proposed FOIA amendments went far beyond security concerns, Gov. Sanders stated, “You always go as big as you can and go for those changes that will make governing more effective.” Indeed, responding to FOIA requests can be burdensome for public entities. But this burden is frequently a result of poor record retention and maintenance policies, not because a large number of FOIA requests are being made. By removing the public’s ability to access records through FOIA, we also remove the pressure put on the government to retain and maintain records in the first place, making it even less likely that the requested records are available even by subpoena. Employing a better record maintenance system is the answer, not reduced public scrutiny.

While the University of Little Rock, William H. Bowen School of Law is not Arkansas’s only law school, it is the state’s only law school in its capitol city. And although Bowen offers a FOIA class already, the focus of this class is on federal, rather than state, FOIA litigation.

Every Arkansan, especially every Arkansan attorney, should care about ensuring our government remains accountable to its citizens. To ensure that Arkansas’s FOIA laws remain a useful check against government correction, Bowen should consider offering a second FOIA course—one that can educate future Arkansas attorneys about how to protect the free disclosure of public information in the Natural State.

Defending our right to know is not a responsibility that should be borne solely by a few.

Posted in: Blog Posts, Legal Comentary

Comments are closed.