Enshrining FOIA

The people of Arkansas have been forced by their state government’s repeated attempts to disassemble our state’s 1967 Freedom of Information Act to try to strengthen and permanently enshrine its rights into the state’s Constitution at the ballot box.

Former state legislator Nate Bell and attorney David Couch are organizing a group to codify the FOIA, and are busy hammering out the precise language to forever remove it from political influence.

Couch, who’s had success in efforts to pass previous constitutional amendments, told our reporter Neal Earley, “There has been overwhelming, outpouring support — bipartisan — overwhelming bipartisan support for a constitutional amendment to enshrine our freedom of information protections in the Constitution so that the General Assembly or the governor cannot attack them again.”

What a splendid and crucial idea, rather than leaving it to the wiles of self-interested politicians and bureaucrats in a state that prides itself on its motto, “Regnat Populus,” Latin for the people rule.

The current FOIA has served everyday Arkansans very well for decades, but today, due to constant political interference, obviously teeters atop a precarious slippery slope.

Robert Steinbuch, a widely respected law professor at the University of Arkansas at Little Rock and author of a legal treatise on the Arkansas Freedom of Information Act, told Earley most adults across the state are in favor of preserving and strengthening transparent government. “People from the far left, to the middle, to the far right, ... agreed transparency isn’t an issue of left or right, it’s an issue of right or wrong,” said Steinbuch.

He’s also in favor of the amendment under construction. “I think the notion of enshrining transparency concepts in the Constitution is a sound one,” he said. “Of course the devil will be in the details, or as they say, God is in the details.”

Our right to know, as set out in the FOIA, is on parallel, in my view, to rights set out in Article 2 (The Declaration of Rights), Arkansas’ version of the Bill of Rights. These rights must be protected at all costs lest they be siphoned away, ironically by those we elect to lead us.

Those drafting the constitutional amendment have but a single opportunity to draft the strongest FOIA in the land. Then, and only then, should the amendment be enshrined. There is no place for a “you’ll do” amendment.

“As the 1967 legislative intent declared: ‘It is vital to a Democratic society that public business be performed in a open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.’ There is no mention of ‘except for’ or ‘other than.’ If the content of the amendment does not match this gold standard, then the drafters should save their ink and millions of dollars which will be required to pass it,” the state’s most active and successful FOIA trial attorney, Joey McCutchen, told me.

One area that absolutely must be emphasized is the definition of what constitutes a legal open meeting because there are public officials who for various reasons can be deceptive and sneaky in how they choose to fulfill responsibilities to their constituents.

The proper definition of a public meeting ensures absolute sunshine and transparency. The current law defines a meeting as a gathering of two or more members of a governing body who discuss or deliberate a public matter on which foreseeable action may be taken by their full body.

While some may say this number isn’t practical, when you analyze it, this really is a common-sense definition. For instance, if the definition of meeting under FOIA permits three members of the governing body to meet secretly, then after three members meet, each can then split off and meet serially with two other members and so on to quickly reach a majority in secret, this effectively destroys the purpose of FOIA and its legislative intent.

After all, the public is entitled to see all the “sausage making,” not just the result. Only when we see and hear the full discussion will the public begin to trust government. The drafters can then add that the governing members can meet privately to discuss burgers, basketball and beer, but not our public business. Hold any and all discussion of who is receiving multimillion-dollar contracts and why, closing our schools for covid, and other weighty public matters for the public eyes and ears.

I can’t help but believe this group will arrive at acceptable language in a constitutional amendment that resolves such an important issue.

Arkansans will have the final say on this admirable effort, which once again means this group needs to get the language and intent absolutely correct.

Now go out into the world and treat everyone you meet exactly like you want them to treat you.