Game & Fish dumps plan for its records

LITTLE ROCK — Citing displeasure from Gov. Mike Beebe and Attorney General Dustin McDaniel, the Arkansas Game and Fish Commission tabled a proposal Monday to create its own freedom of information policy.

If enacted, the commission’s proposal would have significantly limited the flow of information from the agency.

At least one commissioner has said it would have superseded the state Freedom of Information Act, a law enacted by the Legislature to protect the public’s right to know what the state government does.

The draft drew sharp rebukes last week from the governor and the attorney general after it was reported in the Arkansas Democrat-Gazette.

In an emergency meeting Monday in Little Rock, Emon Mahony, chairman of the commission’s governance committee, announced that the commission would shelve the proposal for keeps.

“By making the draft proposal public last week, we wanted to have a full and public discussion of our Freedom of Information Act draft proposal,” Mahony said. “After listening to reaction from the executive and legislative branches, the attorney general and governor believe the draft freedom of information proposal is not a good idea. There will be no further consideration of the draft proposal.

“We apologize for and regret the confusion among the public the draft proposal has caused,” Mahony added.

Beebe approved of the decision to drop the idea, saying, “I am pleased to see the commissioners move quickly and decisively to put a stop to this effort to weaken Arkansas’s Freedom of Information Act.”

McDaniel echoed that, saying through his spokesman, Aaron Sadler, “They made the right decision. The commission acted quickly and correctly today.”

The draft proposal was a component of the agency’s draft administrative procedures policy, which is still under development. The Democrat-Gazette learned of the draft freedom of information policy Wednesday during a governance committee meeting and obtained a copy of the document on Thursday.

Among other things, the 12-page document would have shielded records deemed by the agency director to be embarrassing to Game and Fish Commission personnel, as well as working papers, unpublished memoranda and commission correspondence, and records related to ongoing investigations conducted by the commission’s law enforcement personnel. It would also extend the amount of time required for the agency to retrieve documents in storage from three days to 10. It also redefined elements of the “Open Meetings” clause of the state Freedom of Information Act.

Jim Goodhart, the commission’s chief counsel, said the commission had expressed concerns that the draft freedom of information proposal conflicted with the existing state Freedom of Information Act. He said the proposal was merely a draft and was not ready to be presented to the commission for approval.

“As you know, I was not at your meetings Wednesday and Thursday, but I’m certainly aware that draft FOI rules and procedures were discussed at your Oct. 20 meeting. The discussion touched off a firestorm, to put it mildly,” Goodhart said. “In light of everything that has happened, I am recommending to you at this time that the draft FOI rules and procedures be withdrawn, and that your committee and the commission discuss them no further.”

Mahony said the draft has been a work in progress for 10 years and he first heard about it in July 2009 at his first commission briefing after being appointed to the commission. Six former commissioners - Brett Morgan, Freddie Black, Sonny Varnell, Sheffield Nelson, Mike Freeze and Forrest Wood - said they had never heard of the proposal.

Despite his own recommendation to table the draft,Goodhart said the state Freedom of Information Act does not satisfy the agency’s needs and the draft would have corrected the state law’s deficiencies in regard to the Game and Fish Commission.

“There’s been dialogue for some years how this agency could have specific procedures to [comply] with the FOI law in Arkansas,” Goodhart said. “Many other agencies have additional procedures to implement the FOI law. Something additional is needed for this agency. Whether that draft is needed, we’ve withdrawn that.”

Mahony said the commission did not direct the agency’s legal division to create the policy. He also said the commission’s attorneys would not be fired for drafting such a controversial policy on their own initiative, without a commission directive.

“That’s ridiculous,” Mahony said. “Our counsel is under continuing request to examine everything we do and the way we do it to make sure we are in compliance with the law,” Mahony said. “That’s particularly true at this time as we’re going through the rules of the commission and how they are implemented. Travel and expense policy, vehicle policy, they’re encouraged to give us their views at all times.”

Goodhart acknowledged that the state Freedom of Information Act applies to the Game and Fish Commission as written and that the agency will continue to comply with it.

Mahony declined to comment when asked if the commission was likewise compelled to comply with the Administrative Procedure Act.

“Insofar as I’m aware, I’m not prepared to answer that question at this time. That’s a matter of dispute in litigation, and I suspect that’s where you got the question,” Mahony said.

Nelson, who served on the commission from 2000-07, recently filed a lawsuit against the commission regarding, among other things, its administrative procedures. He said it’s curious that the Game and Fish Commission believes that it must comply with one state law - the Freedom of Information Act - but not another.

“It’s clear from their actions that they feel they are not covered by either law,” Nelson said. “They will find that they are covered under the laws of the state of Arkansas as long as they want to remain a state agency. They will have to comply with the Administrative Procedures Act, just as they found they have to comply with the Freedom of Information Act.

Mahony said he had “zero” conversations with Beebe or McDaniel about tabling the policy, and that the only input from Beebe was from his news conference Friday denouncing the policy.

“I did read the thing in the newspaper about what they had to say, and I paid close attention to them,” Mahony said. “They were very plain in their meaning, and I didn’t think I had to talk directly to them.”

Nelson said he believes that the commission will renew efforts to enact its own freedom of information policy later.

“This was a way for them to save face and get themselves out of a really sticky situation at the present time,” Nelson said. “They apparently believe what they are arguing, and I would not be surprised in the least to [see them] bring it back farther down the road.”