Arkansas legislators Wednesday discussed possibilities for expanding the state's Freedom of Information law to ensure that the financial records of private companies receiving state contracts and public funds are accessible.
State and local governmental agencies have moved in recent years toward contracting more services with private companies including schools that use private bus or cafeteria companies or cities that hire general contractors that double as construction managers. In both cases, the responsibility for spending public dollars and keeping track of those dollars is shifted to those private companies, and the records aren't always available upon request, said Rep. Jim Nickels, D-Sherwood.
Nickels, who will leave the Legislature in January because of term limits, requested the hearing and an interim study of ways to improve the state's open records law. He also is preparing new legislation, with hopes that another legislator would carry it to the 2015 session. He testified Wednesday before a joint meeting of the House and Senate State Agencies and Governmental Affairs committees, along with Max Brantley, senior editor of The Arkansas Times; former State Representative Dan Greenberg, who spoke on behalf of the policy group Advance Arkansas Institute; and University of Arkansas at Little Rock law professor Robert Steinbuch, who specializes in open records law.
"Your electric companies, plumbing companies, sheet metal ... if there's a bid and the bid might be opened, then if you're in construction and you didn't get the contract then you at least know why," Nickels said.
The hearing evolved into a larger discussion of ways to expand the Arkansas Freedom of Information Act, which grants the public access to government records and public meetings so "public business is performed in an open and public manner." The act, which was passed in 1967, has been amended several times to include new ways of communicating such as email, and to clarify what information is not subject to disclosure. The law gives public officials 24 hours to determine if a document is exempt and three days to provide the document or notify a requester if the document is in use or in storage.
Rep. Nate Bell, R-Mena, cautioned against the "chilling effect" he thought might follow if companies knew their books would be partly or wholly opened to public viewing under the state's open records law.
"If we have a bank that issues bonds for a state agency or public entity, that bank under the proposal ... would have its business records open to FOIA," he said. "I do share your concerns with regards to no bid and your concerns in regards to transparency. But we do run the risk of putting a very high burden on a lot of businesses to do business with the state ... I think you'd have a very chilling effect on getting companies to do business with the state of Arkansas."
But Bell said he has been working on a bill that would expand the law to require closed executive sessions held by governmental bodies to be recorded and reviewed by private parties to determine if the subject matter was exempt from disclosure under state law.
He suggested newspaper editors could listen to the tapes and make recommendations of whether the subject matter was appropriate, but said they would likely have to agree to a confidentiality agreement beforehand.
Bell also suggested circuit court judges could play a role, but he said many of the details of his proposal are still being developed.
Greenberg suggested the state should consider tweaking the law to better cover disclosure of activities conducted by the Arkansas Economic Development Commission.
He'd also like all proceedings at the Legislature, including Senate hearings, to be broadcast. In addition, Greenberg wants the law to guarantee the right to make recordings in public spaces and to review the criminal records of public officials or candidates.
Brantley stressed that the open records law, which is often thought of as a law protecting the news media's access to information, is a law meant to protect the entire public.
"The public is always better served with more disclosure rather than less. And I think particularly as we move into the area of outsourcing and more public money going into private hands, it's going to get harder and harder to follow that money," he said.
Brantley highlighted the lack of access to records at university foundations, the need for a "coherent" record retention policy to prevent public records from being destroyed before they are requested, and the inability to access working papers of sitting elected officials.
Metro on 06/24/2014