Pardon me if I get nervous any time a legislator says he has a plan to "improve" the Arkansas Freedom of Information Act. After its passage in 1967, the law became a model for making state and local government more transparent. Yet our Legislature almost annually attempts to water it down.
Transparent government is not comfortable for those in the "fishbowl." But it's critical in a representative democracy that the people stay informed about their government. Meetings and records must be public.
Rep. Nate Bell, R-Mena, said recently he's working on a bill to improve the Arkansas FOIA. He is concerned that some governmental bodies occasionally abuse their right to have closed executive sessions.
The FOIA allows a governmental body, such as a school board or city council, to go behind closed doors only to discuss the "employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee." Afterward, any action taken must be repeated in open session.
No formal record is kept of an executive session. Thus, members of the board or council, as well as its chief executive, are on their honor.
We all know that rule is sometimes bent or broken. Sometimes the violation is due to ignorance of the law; sometimes it's done purposefully.
Bell proposes to require that an audio recording be made of every executive session of every entity subject to the open meetings law. On his Facebook page he explains that the bill "would require review of those recordings by an administrative or judicial mechanism and that all portions of the meetings not in compliance with the open meetings laws be immediately made available to the public."
He brought the subject up during a meeting last month of the House and Senate committees on state agencies and governmental affairs. The subject was a previous request for an interim study on the possibility of expanding the FOIA.
Certainly the executive session provision is one of the most abused portions of the law. It would be nice to stop the abuse.
The question is how to enforce such a requirement.
It would be relatively easy to require an audio recording of every executive session. Recorders are cheap and easy to operate. But what do we do when the batteries fail at a critical point? Will we know if the recorder is turned off for a while? What's the penalty for failing to record?
More critically, what would be that "administrative or judicial mechanism" that Bell proposes? Bell has suggested that the recordings could be reviewed by a prosecutor, a designated attorney, a judge or even newspaper editors if they would sign to a confidentiality agreement.
Surely, Bell has no idea about how much work would be involved. Executive sessions can last for hours. On a statewide basis for any given day, the number of public meetings would be in the hundreds.
Bell, who doesn't like taxes, needs to explain how he'll pay for the additional personnel that would be needed by whoever conducts the reviews.
Most of those meetings take place with no member of the public in attendance and no media coverage, even after the fact. In effect, holding an executive session isn't an issue; everything is a secret unless the superintendent, mayor or chief officer wants publicity.
If we, meaning citizens and news organizations, held our public officials more accountable by showing up for public meetings, the problem would be greatly reduced. Most of the people who sit on those boards and councils are honest and well-intended. They won't break the law if we show them we care and are watching.
We in the press already have a recourse. If a reporter suspects wrongdoing, he should ask the parties involved. Years ago, when I was covering a meeting of the Batesville City Council, the mayor called for an executive session on the police chief, with whom he had a running battle. Afterward, the council resumed its public session, took no action on the chief but immediately adopted a resolution on Police Department policies without discussion.
That had obviously been discussed in executive session, a violation of the law, so after the meeting I started calling aldermen. Five in a row said, yes, they had discussed the policies so that's what I reported.
It didn't happen again, or at least they learned how to avoid the appearance of a violation.
As for the idea of "deputizing" newspaper editors to review recordings of executive sessions, that's a terrible idea. First, editors, especially in the wake of recent layoffs and downsizing, don't have the time. In many communities the local newspaper doesn't even cover open sessions.
Secondly, that would compromise the independence of the press by making its editor an agent of enforcement. The confidentiality agreement could become a problem if the editor and prosecutor disagree on what a review shows. In case of a legal dispute, whether civil or criminal, the editor becomes a party rather than an impartial observer.
A simpler mechanism for enforcement would be to require those involved in an executive session to sign an affidavit afterward affirming that they followed the law. At least they'd think twice when asked to violate it.
ROY OCKERT IS EDITOR EMERITUS OF THE JONESBORO SUN.
Commentary on 07/08/2014