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 糖心Vlog传媒 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 鈥�,鈥� because more transparency helps ensure better accountability. Although the dispute in NLRB concerned the applicability of federal FOIA laws (), all fifty states have since adopted their own FOIA laws, .
Arkansas politics recently made after the state鈥檚 Republican Governor, Sarah Huckabee Sanders, accused taxpayers of taking advantage of Arkansas鈥檚 FOIA laws to 鈥�.鈥� This last reason鈥攕afety concerns over her family鈥攚as the for the Governor giving lawmakers and the public a scant of the that convened on September 11, 2023.
The Governor outlined 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鈥檚 FOIA law.
Changes to the Original Draft
For the FOIA amendments specifically, Gov. Sanders detailed in the FOIA ballot measure she wanted to see adopted. If enacted, these changes would have altered Arkansas鈥檚 FOIA laws to:
# 1 additional exemptions for records related to the travel of the Governor and many of the other highest-ranking state officials;
#2 Remove the public鈥檚 access to records detailing the legislature鈥檚 ;
#3 Protect attorney work product and the of state entities;
#4 existing exemptions under Ark. Code Ann. 搂 12-8-108(c) to the duties of the state police described in 搂 12-8-108(a) (pertaining to the security of the Governor, capitol building, and others);
#5 Restrict when may be awarded in FOIA litigation; and
#6 Require the Arkansas State Police to provide of the Executive Protection Detail, aggregated monthly.
While these six points are all reflected in the bill鈥檚 , the ultimately passed by the House and Senate a few days later is, fortunately, 鈥溾�� from the original proposal. One other key provision鈥攔etroactively applying the changes called for in #1 back to January 1, 2022鈥攁ppears 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) , significantly lessening the scope of Gov. Sanders鈥檚 proposed changes.
Governor Sanders鈥檚 Swiss Cheese Narrative
Before the special session began, Gov. Sanders publicly stated that her attempt to overhaul Arkansas鈥檚 FOIA laws was primarily for reasons related to the . 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鈥攊ncluding the cost of such travel, which is borne by Arkansas taxpayers鈥攗navailable ?
Apparently, the Governor鈥檚 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 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 before Governor Sanders was sworn into office? As a result of the Governor鈥檚 to get this bill passed as part of the special session, maybe we鈥檒l never know.
After the new FOIA amendments were signed into law, the Governor celebrated on X (formerly Twitter): 鈥�.鈥� As many of the responses highlight (e.g., , , and ), this new narrative doesn鈥檛 seem to align with the Governor鈥檚 originally stated purpose鈥�.
Additionally, just how many FOIA requests does it take to 鈥渨eaponize FOIA鈥�? , apparently鈥攁nd 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鈥檚 three earlier requests. Of particular note, none of the FOIA requests received by the Arkansas State Police 鈥�.鈥�
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 to this past June. The Governor has nevertheless claimed that her proposed FOIA amendments 鈥�.鈥欌�� This seems, at best, disingenuous.
Checking Against Corruption
FOIA laws are rooted in the idea that the government should be accountable to the , and this accountability is achieved through requiring governmental transparency. Yet, according to the Governor, 鈥�.鈥� Presumably, 鈥渢hey鈥� are Arkansas taxpayers who file lawful FOIA requests.
Setting aside the concerns about the Governor鈥檚 concealment of travel-related records and the host of these new exemptions may allow, this is also not Gov. Sanders鈥檚 to exempt the deliberative process from FOIA disclosure. According to the Governor, 鈥�,鈥� because the proposed language limiting the public鈥檚 access to the deliberative process would have supposedly federal FOIA laws. But is forcing Arkansans to rely instead on a court鈥檚 really a preferable alternative? And, if so鈥攁 better alternative for whom?
Arkansas鈥檚 FOIA laws have historically been some of the most citizen-friendly in the . However, we now risk eroding these protections down to the same 鈥溾�� standards that exist at the federal level.
Attempting to explain why the originally proposed FOIA amendments went far beyond security concerns, Gov. Sanders stated, 鈥�.鈥� Indeed, responding to FOIA requests can be burdensome for public entities. But this burden is frequently a result of record retention and maintenance policies, not because a large number of FOIA requests are being made. By removing the public鈥檚 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 .
While the University of Little Rock, William H. Bowen School of Law is not Arkansas鈥檚 only law school, it is the state鈥檚 only law school in its capitol city. And although Bowen offers a 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鈥檚 FOIA laws remain a useful check against government correction, Bowen should consider offering a second FOIA course鈥攐ne that can educate future Arkansas attorneys about how to protect the in the Natural State.
Defending our right to know is not a responsibility that should be borne solely by a few.