Friday, March 03, 2017

EDITORIAL >> FOI: Letting sunshine in

The 50-year-old Arkansas Freedom of Information Act is under attack from lawmakers representing special interests, with 20 or more bills seeking to amend and curtail it.

Some, like the bill proposed at the behest of the Pulaski County Sheriff’s Office and sponsored by state Representatives Bob Johnson (D-Jacksonville), Karilyn Brown (R-Sherwood), Mark Lowery (R-Maumelle) and state Sen. Jane English (R-North Little Rock), seem reasonable, at least on their face, while others, like SB373, would let public boards and councils to operate at times in secrecy, withholding information and records.

That bill, introduced by Sen. Bart Hester (R-Cave Springs), is supported by University of Arkansas lawyers, who want negotiations and other sensitive dealings kept out of the public eye.

The problem with Hester’s one-sentence amendment is that it can be interpreted as shielding any such information or action from the public by sending a copy to the entity’s lawyer and then claiming lawyer-client privilege.

Titled, “An Act to Exempt Attorney-Client Communication and Attorney Work Product from the Freedom of Information Act of 1967; And for Other Purposes,” here’s how it reads:

“Section 1. Arkansas Code § 25-19-105, concerning examination and copying of public records, is amended to add an additional subdivision to read as follows:

“A record that constitutes an attorney-client privileged communication or attorney work product.”

Robert Steinbuch, a professor at the Bowen School of Law at the University of Arkansas and an expert on the Freedom of Information Act, said of Hester’s bill, “It’s a dog—designed to disembowel the FOIA. It presents as a modest proposal that is really a bill to advance the interests of special interest over the public. It’s completely anti-openness. For 50 years the FOIA entitled the citizens of Arkansas to get the very records that SB373 seeks to shield. The public has the right to know what its representatives are doing.”

Until Hester filed SB373, Steinbuch thought Johnson’s bill was the gravest threat to the Freedom of Information Act’s ability to keep the public informed since it was established.

Johnson says his proposed bill wouldn’t much change the existing law, which gives the custodians of information three days to provide it to the person who requests it, but would give standing for the curator of that information to appeal if a request is “unduly burdensome.”

Pulaski County attorney Adam Fogleman gave the real-life example of a person who requested a week’s worth of dispatch tapes from a sheriff’s office. With 22 channels, 24 hours a day for a week, that’s 3,675 hours of tape that must be reviewed in three days, Fogleman said. That would be 92 40-hour workweeks worth of labor in three days.

Fogleman said he knows of a case in which it was virtually impossible to meet the three-day deadline, but in which the custodian was found guilty in court of failing to obey the FOIA.

As currently written, Tom Larimer, executive director of the Arkansas Press Association, says, “We are not presently OK with (HB1622). We are writing a proposed amendment that should clarify that the three-day window is not changing.”

Larimer said Johnson does not want to change the three-day rule. Johnson told us he wants to preserve the media’s right to get a speedy response from public officials.

Another bill aims to delay the release of accidents to chiropractors and lawyers who sometimes use the FOIA to seek out clients. That may seem like ambulance chasing to some, but justice and medicine can be found in strange places. We also think such a bill will prohibit the general public — not just lawyers and chiropractors — from viewing accident reports.

All of this is occurring in an atmosphere where the press is being attacked as being “the enemy of the American people” by President Trump and some of his supporters.

They don’t trust the press and some seek to punish the press for the unfavorable coverage—no matter how accurate—that he and his administration are getting.

Larimer says critics of the press fail to recognize that the Freedom of Information Act, while often used by the press, is written for everyone so that government agencies can’t conduct their operations secretly.

Steinbuch has a different take. He is concerned about what he calls “the deep state,” which protects bureaucrats at the expensive of the rest of us.

Good government is open government. Sunshine, they say, is the best disinfectant. We agree.