Last week, I was horrified to watch state Rep. Andy Davis walk into a House State Agencies Committee hearing, accompanied by several taxpayer-funded state-university minders, to eviscerate the state Freedom of Information Act (FOIA).
Our state universities, through Davis and state Sen. Bart Hester, are seeking to throw out 50 years of FOIA success in Arkansas by creating a so-called "attorney-client" FOIA exemption for government officials that will swallow the law itself. Our state legislators should follow a different path: Stop carrying out the wishes of special interests and, instead, ensure that the people are entitled to find out what their government is doing.
Senate Bill 373 (Hester's and Davis' bill) is, to put it simply, based on a fundamental mistake. Both the attorney and client that it would shield from transparency are government employees who feed on your taxpayer dollars. You have a right to know what records your employees are creating with your money.
The attorney-client privilege for government agents is sharply smaller than for private actors. The repeated comparison between the two made by Davis (and his beautifully dressed, taxpayer-funded minders) is flawed.
The government's business is to satisfy its legally mandated obligations to the public; citizens rightfully seek redress when officials fall short. As such, there is no bright line between privileged and nonprivileged communication. Private companies sell goods and services; their job is to advance private interests. Public bodies owe a special duty to citizens which private companies do not.
Furthermore, the taxpayer-compensated spokesman for the University of Arkansas for Medical Sciences argued for Davis' bill by saying that citizens' legitimate FOIA requests that were foiled by Davis' proposal could simply go to court.
The problem is that, unlike the spokesman himself, the average citizen can't rely on taxpayer dollars. It's difficult and expensive to go to court if you don't have a government budget to fund it. What's easy for UAMS is impossible for the average citizen; UAMS' hired gun is surely well aware of this.
Besides, how would we ever know if legitimate FOIA requests were illegally blocked? The exploitation of the FOIA by government bureaucrats will necessarily go undiscovered under Davis' proposal, because nobody will be able to oversee the government's actions.
The advocates for this major change in FOIA law repeatedly suggested that it was needed for a highly unusual reason--because public bodies face a systemic disadvantage when sued, because opposing lawyers make FOIA requests that reveal the government's vulnerabilities. That premise is false. Moreover, they also didn't disclose that government bodies can easily ask a court for a protective order to address this issue. In other words, SB373 claims to solve a problem that doesn't exist--in order to gut our FOIA law for the benefit of special interests.
Because of growing opposition, the committee's chair, Bob Ballinger, recently agreed to limit the proposed FOIA exemption to records reflecting trial strategy for cases in active litigation. But much, much more still needs to be done to fix this deeply flawed bill, which seems unlikely to happen at this point.
SB373 isn't the only body blow that our FOIA faces this session. State Rep. Bob Johnson has introduced a separate FOIA-crippling bill, House Bill 1622, which will eliminate the three-day deadline in which government must produce public information.
Johnson wants to junk the three-day deadline in favor of a wholly subjective deadline, which would allow government bureaucrats to delay fulfilling public-records requests whenever they decide they have more important things to do. (I'm not exaggerating, either.) When our citizens ask for records of what our government is doing, we should have a right to fixed deadlines, rather than "Yeah, I'll get around to it eventually."
Arkansas often struggles as a small Southern state to stand out among our many richer and bigger neighbors. But we have gained national renown because of our robust Freedom of Information Act.
Our FOIA has always allowed citizens and the press to obtain records from government bureaucrats dependably--even from in-house, taxpayer-funded attorneys. That balance has always worked.
Hey, folks: Don't fix what ain't broke.
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Robert Steinbuch, professor of law at the Bowen Law School, is co-author of The Arkansas Freedom of Information Act, now in its sixth edition.
Editorial on 03/10/2017