Arkansas’ FOIA is The People’s Law, not government officials’ law

Arkansas Attorney General Tim Griffin’s recent call to modernize the Arkansas Freedom of Information Act (AFOIA), along with Gov. Sarah Sanders‘ proposal for amendments during her announcement of the special legislative session, have each raised important questions about the balance between transparency and privacy in government operations.

In her announcement of the special session, the governor hinted at potential amendments to the AFOIA. Her concerns primarily revolved around protecting the internal discussions within the executive branch from public scrutiny, citing death threats that arose during her gubernatorial campaign and afterwards.

Subsequently, House Bill 1003 was filed in the Arkansas Legislature last Friday. This bill aims to restrict public access to records related to the security of the executive branch, covering communications, processes, and travel arrangements. The restriction will apply retroactively to January 2022.

Additionally, House Bill 1003 seeks to limit access to documents, communications, or internal deliberations that could cast any Arkansas state agency in a negative light. This includes materials related to contract bids and discussions, attorney-client privilege, and legal strategy, particularly during periods when the state is facing legal action.

One thing to note about House Bill 1003 is that the amendments it seeks bear a resemblance to those found in Exemption 5 of the federal Freedom of Information Act (FOIA), specifically concerning the utilization of deliberative process privilege exemptions.

Deliberative process exemptions, often referred to as “privileges,” are rules that keep certain internal government documents and discussions secret under the FOIA in the U.S. They exist to let government officials talk freely, share ideas, and explore options without worrying about the public hearing or reviewing those conversations. While they’re sometimes useful, using those “privileges” too much or in the wrong way can harm transparency and government accountability.

It’s crucial to keep in mind, as emphasized in a brief authored by myself and Dr. Mavuto Kalulu in 2022, titled “Political Transparency for Improved Resident Participation” published by the Arkansas Center for Research in Economics (ACRE) at the University of Central Arkansas, that the primary purpose of FOIA is to ensure that government decision-making is accessible to the public and that resident  participation is promoted in the process. FOIA is, in essence, the people’s law, not the government officials’ law.

The Arkansas FOIA has been praised for having some of the most comprehensive laws regulating open records and open meetings in the nation. Arkansas Attorney General Tim Griffin shares a similar viewpoint on his official website. However, Arkansas’ performance in practice — as evaluated by organizations like the Sunshine Review, the Center for Public Integrity, and ACRE — reveals room for improvement.

Despite the accolades, Arkansas’ performance in transparency still lags in certain aspects. In 2013, the Sunshine Review’s 2013 Transparency Report Card highlighted that the state government earned a B score in Transparency. In 2015, the State Integrity Report ranked Arkansas as the 32^nd most transparent state in the nation. In this report, the authors noted that while Arkansas had strong general protections for record release, it also had numerous exemptions and loopholes hindering the release of records.

Governor Sanders’ proposal to expand the use of federal deliberative exemptions under the AFOIA raises concerns about unintended consequences. While protecting the safety of public officials is paramount, overly broad FOIA reforms can erode public trust in government.

Studies like the one conducted by Francisco Albaladejo titled “Transparency and Government Trust,” published in the academic journal Public Sector Economics in 2019, consistently highlight a crucial point: When the public loses trust in its government, any claims of success made by that government are viewed as self-proclaimed and lack credibility. If we expand exemptions in FOIA, we risk further distancing the public from government officials, which, in turn, reduces opportunities for trust or holding those officials accountable.

It’s essential to strike a balance between safety and transparency. Rather than replicating federal-level procedures, Arkansas should focus on maintaining its reputation as a state committed to transparency and continue its ongoing efforts for further improvement.

Alternative approaches to ensure the safety of public officials can be explored without compromising the principles of open government. It’s worth noting that various states, including Arkansas, in certain instances have employed practices like redacting sensitive information. In other cases when there are security threats, some states require confidentiality agreements for FOIA access to certain records, issue non-disclosure orders, or utilize balancing tests to protect sensitive records.

Arkansas residents have the right to transparency and accountability in government operations. The path forward should prioritize preserving public trust, which is foundational for effective governance and accountability in our state.