Proposed ballot language that would make government transparency a constitutional right in Arkansas still lacks clarity and is unfit for a statewide vote, Attorney General Tim Griffin wrote in a Monday opinion.
In response, the nonpartisan Arkansas Citizens for Transparency (ACT) submitted another draft to Griffin’s office Monday evening.
ACT proposed a second iteration of the amendment Dec. 20 after Griffin rejected an earlier attempt. The group submitted four potential ballot titles:
- The Arkansas Government Transparency Amendment
- The Arkansas Government Openness Amendment
- The Arkansas Government Disclosure Amendment
- The Open Meetings and Open Records in State and Local Government Amendment
ACT’s third submission included only The Arkansas Government Transparency Amendment as the ballot title.
The group defined “government transparency” in the second and third ballot language proposals as “the government’s obligation to share information with citizens,” since Griffin said in his rejection of the first attempt that the term needed a definition. The third proposal added that the government has a duty to “deliver information to citizens.”
Providing a definition was not enough because the existing Arkansas Freedom of Information Act does not use the term “government transparency” and ACT’s proposed amendment does not provide a cause of action for it, Griffin wrote in Monday’s opinion.
“Since you have made no attempt to address this issue, I repeat what I said before: ‘Since it is unclear from the face of your proposed text what you have in mind, I cannot ensure that this version of your proposed ballot title properly summarizes your proposed text,’” he wrote to David Couch and Jen Standerfer, two attorneys on ACT’s seven-member drafting committee.
Griffin also said the second proposal still needed definitions of “public record,” “public meeting,” “public notice,” and “public process,” as he requested in his rejection of the earlier draft.
The first two amendment proposals said the state Legislature “shall not make a law that diminishes public access to government” without the approval of the people of Arkansas. The third proposal did not include this clause or a definition of the phrase “diminishes public access to government” in response to one of Griffin’s continuing concerns.
Griffin’s opinion noted the “lack of the full text” of the proposed amendment, meaning an “attempt to incorporate key provisions of the FOIA into the constitution by referencing the FOIA’s key terms” without specifically referencing the law or defining those terms.
“You continue to define the phrase ‘diminishes public access to government’ by reference to key terms in state statute without providing any definition of those terms,” he wrote.
Additionally, Griffin took issue with the following clause in the ballot title: “requiring that public officers conduct government business in a manner that is open to Arkansans in access to public records, conduct of public meetings, and issuance of public notice.”
“I cannot find anything in the text of your proposed amendment that establishes such a requirement,” he wrote. “Perhaps this language in the ballot title is an unintentional holdover from the first version of your proposal, which clearly did include that requirement.”
The third version of the ballot title did not include this clause.
In addition to submitting the new proposal to Griffin for approval, ACT has the option of appealing to the courts.
Couch said in an interview Monday afternoon that “litigation is imminent” after two rejections even though ACT was revising the proposal again.
“It’s clear that the attorney general believes that the statutory responsibilities that he has been given by the General Assembly overrides the people’s constitutional rights guaranteed in Article 5, Section 1 of the Arkansas Constitution,” Couch said, referring to the portion of the Constitution that stipulates the process for ballot initiatives and referenda.
“He’s made it clear in his opinion that that’s what he believes, and it’s wrong,” Couch continued. “It’s no different than the attorney general walking into someone’s house and confiscating their guns. He’s violating our constitutional rights, and his opinion makes it pretty clear he’s going to continue to do so.”
Griffin has until Jan. 23 to approve or reject the third draft.
Proposed companion act
On Tuesday, Griffin will approve or reject a proposed initiated act that would alter the state FOIA.
The act is meant to go hand in hand with the twice-rejected amendment, a decision the ACT drafting committee made after receiving public feedback about the proposed amendment before sending it to Griffin for approval the first time.
ACT submitted a revised version of the proposed act Dec. 21 after Griffin rejected the first version three days earlier. The drafters submitted four potential ballot titles for the act, which includes the same definition of “government transparency” they included in the revised amendment proposal.
The proposed act seeks to codify a definition of a “public meeting” and broaden the legal definitions of a “governing body” and “communication” among members. As with the rejected amendment, the drafters did not define “public meeting” in the second version of the text as Griffin previously requested.
The proposed act would also:
- Specify how records custodians must contact requesters and inform them whether the records are disclosable or not.
- Protect citizens’ right to appeal FOIA decisions and collect any resulting attorneys’ fees.
- Create the Arkansas Government Transparency Commission, with its members appointed by state elected officials, to help citizens enforce their right to obtain public records and observe public meetings.
- Create stiffer civil penalties for violating the FOIA.
- Repeal Act 883 of 2023, which gave Arkansas school boards more reasons to go into executive session and allow more people to have closed-door meetings with school board members.
- Mandate that records concerning the planning or provision of security services to the governor and other state elected officials be considered public and accessible under the FOIA after three months.
ACT formed in response to Gov. Sarah Huckabee Sanders’ signing of a law enacted during a special legislative session in September that shields certain state officials’ security records from public access. Sanders advocated for several more exemptions to the FOIA that met bipartisan pushback and did not advance in the Legislature.
