A judge preparing to decide whether Gov. Mike Beebe can withhold from public disclosure applications from potential appointees was called on Friday to balance the need for government transparency with the importance of protecting open communication between the state’s top leaders.

Lawyers from the attorney general’s office and the Republican Party of Arkansas also clashed before Pulaski County Circuit Judge Mary McGowan over the effect of the only other time the issue has been litigated before the Arkansas Supreme Court, 22 years ago.

McGowan did not say when she would rule.

At stake immediately is whether the Democratic governor can rely on an exemption in the state’s open-records law that Beebe claims allows him to withhold from public disclosure the applications he receives for the 300 commissions, committees, boards and panels whose members are appointed by the governor.

Republican Executive Director Megan Tollett asked for about two years’ worth of applications in October, then sued Beebe under the state open-records law when he would not release them.

Beebe invoked an exemption in the Freedom of Information Act that shields his “unpublished memoranda, working papers and correspondence.”

It’s a protection from public disclosure that also shields the papers of the General Assembly, Supreme Court justices, appeals court judges and the attorney general.

On Beebe’s behalf, Joe Cordi, senior assistant attorney general, warned the judge that a ruling against the governor could have dire consequences for Arkansas’ “apex” leadership.

“The plaintiff is trying to cripple the law that allows the free exchange of thought between state leaders,” he told the judge, describing the issue before her as “very simple yet very important.”

The secrecy granted to the applications lets applicants be honest and open with the governor because they know their applications will not be publicly disclosed, Cordi said. Beebe has maintained a policy of never releasing them during his two terms in office, Cordi told the judge.

The materials sought by the defendants obviously fall under the exemption for “working papers,” he said.

“They are papers the governor works with,” Cordi said. “These are the papers the governor uses to select people for appointments.”

For the Republicans, attorney George Ritter warned that a ruling favoring Beebe would give him too much authority to decide what should be released to the public. The legal arguments Beebe is relying on are self-serving based on the legal opinions of attorneys general who have a stake in maintaining the exemption, he argued.

“What we have here is the governor’s interpretation of the working-papers exemption,” he told the judge. “If you make that approach, he doesn’t have to release anything. It means the governor is the sole arbiter of what he is going to release.

“I can’t think of a more compelling public interest than the public’s right to know who is applying … what are their qualifications.”

There appears to be only one legal precedent, a 1992 lawsuit against the attorney general of the time, Winston Bryant, in which the Supreme Court ruled he did not have to disclose reports created by consultants hired by his office.

Both sides claim the resulting decision favored their side, with Cordi arguing it proved his point that materials submitted to the governor fall under his open-records exemption.

Ritter contended the case showed the high court had determined that only records created under the authority of the officeholder are entitled to be withheld from the public.

“I can’t think of a more compelling public interest than the public’s right to know who is applying … what are their qualifications.”

Arkansas, Pages 9 on 04/12/2014