Effort to restrict public’s access to Arkansas records stumbles at start of legislative session

Gov. Sarah Huckabee Sanders, R-Ark., speaks while delivering the Republican response to President Biden’s State of the Union address, Tuesday, Feb. 7, 2023, in Little Rock, Ark. (Al Drago/Bloomberg, Pool)

Arkansas Gov. Sarah Huckabee Sanders’ proposal to restrict the public’s access to records about her administration, travel and security stumbled at the outset of a special legislative session that convened Monday, with lawmakers trying to rework the legislation in the face of growing criticism that it erodes the state’s open records law.

The House and Senate ended the day without any action on the legislation, one of several items Sanders placed on the agenda for the special session she announced Friday. The Senate scuttled plans to hold a committee hearing Monday night on the bill, as lawmakers worked on revising the proposed changes to the state’s Freedom of Information Act.

“We’ve made amendment after amendment after amendment today. It’s just not ready,” Senate President Bart Hester told a committee room packed mostly with opponents of the legislation who had been waiting to to testify on the measure for most of the day. Hester said they expected to have a new bill filed later Monday night or Tuesday.

The plan to restrict records has prompted an outcry from press groups, transparency advocates, Democrats and some conservatives who said it undermines the state’s 1967 law that protects the public’s access to government records. Opponents have also questioned the need for quickly pushing for the legislation in a special session.

“To try to railroad this thing through in one or two or three days is not right and it’s not fair, particularly with the breadth of this legislation,” said Joey McCutchen, a Fort Smith attorney who has specialized in FOI lawsuits.

The legislation would allow the state to wall off details about the security provided to Sanders and other constitutional officers, including who travels on the State Police airplane and the cost of individual trips. Sanders has said the changes are needed to protect her and her family. Sanders has cited death threats she’s faced over the years, going back to her time as former President Donald Trump’s press secretary.

More broadly, the bill also would block release of state agencies’ “deliberative process” records such as memos and advisory opinions — an exemption that Sanders has said is modeled after one in federal law. Under new legislation filed late Monday night, that exemption was replaced with a new one blocking the release of records ”reflecting communications” between the governor’s office and Cabinet secretaries.

Sanders, who met with Senate Republicans for about a half hour behind closed doors Monday morning, didn’t say whether she was looking at changes to the bill.

“We’re going to continue working with our partners in the Legislature,” she told reporters after the meeting.

FOI experts have also criticized the measure for adding an attorney-client privilege and for changing how attorney’s fees are awarded to plaintiffs who prevail in FOI lawsuits.

The bill would close off access to records that are at the center of a lawsuit an attorney and blogger has filed against the Arkansas State Police. Matt Campbell, who runs the Blue Hog Report site, has accused the agency of illegally withholding the governor’s travel and security records.

Groups such as the Arkansas Press Association, the Arkansas chapter of the Society of Professional Journalists and a task force the Legislature formed in 2017 to review FOI measures have strongly opposed the legislation.

Opposition has also came from groups on the right, including two county Republican Party committees and the state chapter of Americans for Prosperity.

David Couch, an attorney who has authored successful ballot initiatives on medical marijuana and the minimum wage, said earlier Monday he was working on a referendum effort on the FOI changes if they become law.

“This would be the most overwhelmingly popular issue I’ve worked on,” Couch said.

The open records law changes have drawn far more opposition than other items on the special session agenda, including a tax cut proposal that followed the state reporting its second-largest budget surplus in history.

A Senate committee on Monday endorsed the tax cut legislation, which calls for cutting the top individual and corporate income tax rates by .3%. It also would create a one-time nonrefundable tax credit for taxpayers making less than $90,000 a year. The full Senate is expected to take up the measure on Tuesday.