Bill to shield Arkansas officials’ security records moves forward

Arkansas lawmakers’ third attempt this week to alter the state’s Freedom of Information Act advanced in both the House and Senate on Wednesday.

House Bill 1012 and Senate Bill 10 would exempt from FOIA all records and communications concerning the planning or provision of security services to the governor and other state elected officials.

The House bill passed the House Committee on State Agencies and Governmental Affairs on a split voice vote, while the Senate bill passed the full Senate with little dissent.

Two previous sets of bills with further exemptions did not advance Monday and Tuesday after bipartisan opposition from lawmakers and members of the public.

Some transparency advocates, including the Arkansas Press Association and Arkansas Broadcast Association, welcomed the narrowed-down legislation, which was filed Tuesday night.

Others said they appreciated the removal of the other proposed exemptions but still believed the legislation was too broad and infringed on the public’s right to know how government officials behave and spend taxpayer money.

Proposed FOIA exemptions that did not advance

Lawmakers filed legislation on Friday, the day Gov. Sarah Huckabee Sanders called for a special legislative session, that would have added four exemptions to the Arkansas Freedom of Information Act of 1967.

In addition to records related to security services provided to the governor and other state officials, the initial legislation would have exempted:

• Records revealing the deliberative process of state agencies, boards, or commissions.
• Records prepared by an attorney representing an elected or appointed state officer, a state employee, or a state agency, board, or commission in anticipation of litigation or for use in pending litigation.
• Records created or received by an elected or appointed state officer, a state employee, or a state agency, board, or commission that would be covered by attorney-client privilege.

Pushback from the public and from some lawmakers led to the removal of the “deliberative process” exemption from new legislation filed Monday night. The exemption was modeled after a similar clause in other states’ sunshine laws and in the federal FOIA, which has been criticized as easy for public officials to use as an excuse to withhold requested documents.

The second bill traded the deliberative process clause for the exemption of documents reflecting communications between the governor’s office and any cabinet secretary.

Opponents of the second bill said the legislation was better without the deliberative process clause but criticized the remaining exemptions.

Lawyer and FOIA advocate Joey McCutchen said he thought the effective date of the proposed FOIA exemptions, which would apply retroactively back to June 1, 2022, implied that the government has something to hide from the public.

“We need to do our business in complete sunshine and no darkness,” he said.

McCutchen and Jimmie Cavin, another FOIA advocate, both said the public should have access to records about Gov. Sarah Huckabee Sanders’ air travel, especially if public money funds the aircraft. They were referring to a lawsuit filed by Little Rock attorney and blogger Matt Campbell of the Blue Hog Report for ASP communications related to security for Sanders and her husband, Bryan Sanders, as well as documents reflecting ASP security costs for the Sanders.

State Police Director Mike Hagar and other state officials have said that releasing some of those records could reveal sensitive information about how State Police protect the governor.

Cavin said he did not believe information about the members of Sanders’ security detail should be public information, but he said people should be able to know how much the governor’s travel costs regardless of who is in office.

“If a governor is taking someone on taxpayer-funded trips, then I would like to know who that is and the reason behind that,” Cavin said. “…If Bon Jovi’s on that airplane, I’d like to know.”

Security and litigation

Several people who discussed Senate Bill 10 before the Senate State Agencies committee reiterated their statements to the equivalent House committee later when it considered House Bill 1012.

Lead sponsor Rep. David Ray, R-Maumelle, said the bill was needed to protect Gov. Sanders and her family. Unlike past governors, Ray said Sanders is a “household name” and people have strong opinions about her. 

Hagar, similarly, told both committees that the threat level the agency’s executive protection detail is facing with Sanders is “incomparable” to past governors.

Unlike the Senate hearing, the House hearing made clear that the proposed legislation and its June 2022 effective date are largely in response to Campbell’s FOIA requests and lawsuit over ASP records.

Rep. Julie Mayberry, R-Hensley, questioned legislating in response to ongoing litigation. She wondered aloud whether Republicans would have supported similar provisions when they were the minority party and a Democrat occupied the Governor’s Mansion.

“Anytime a lawsuit is going, are we going to be asked to come up here and change the law?” Mayberry said.

Of those who spoke against the bill before both committees, all said they thought legitimate security interests should be protected, but they feared that Ray’s bill went too far. 

Most of the questions to Ray in the House committee meeting came from Rep. Nicole Clowney, D-Fayetteville, who asked whether the exemptions were too broad. 

For instance, Clowney noted that the public might want to know if the governor is regularly traveling on the State Police’s airplane with a major campaign donor.

Hagar said State Police were most concerned about revealing who isn’t on the plane, referencing that the number of troopers assigned to the governor’s detail varies depending on the trip. 

Any FOIA exemptions should be crafted with “as small a chisel as possible,” Clowney said, adding that she planned to vote against the legislation because she still felt it was overbroad.

Senate votes

Sen. Bryan King, R-Green Forest, opposed all versions of the proposed changes to the FOIA. He said Wednesday that he had a problem with Senate Bill 10’s retroactivity clause, since it would date back to former Gov. Asa Hutchinson’s administration.

Hagar pointed out that June 1, 2022 was shortly after the gubernatorial primary elections in which Sanders and her Democratic opponent, Chris Jones, won their party nominations. Both have three young children, and State Police started to adjust their security protocols in preparation for the November election regardless of its outcome, Hagar said.

King said he understood this but was still uncomfortable with the bill, partly because it did not have a sunset provision, giving the Legislature the option of tweaking it in 2025.

Sen. Clarke Tucker, D-Little Rock, the committee’s vice chair, said he would vote for Senate Bill 10 because he promised his colleagues he would do so if they presented a bill that was limited to records about security for the governor.

“If I were writing this bill, I would write it differently,” Tucker said. “In my personal opinion, it’s probably a little bit broader than it should be. However, when it comes to the safety and security of the governor and her family, I think it’s important to err on the side of their security.”

Tucker joined 28 Republican senators in voting for the bill on the Senate floor. The Senate accepted the bill’s emergency clause, which needed at least 24 votes and would allow the law to go into effect immediately upon the governor’s signature.

Democratic Sens. Greg Leding of Fayetteville and Fredrick Love of Mabelvale were the only members to vote against Senate Bill 10.

King was outside the chamber when the vote was cast, and his vote was recorded as “yes” in the legislative record. He told reporters that he would have voted “no.”