State Rep. Nate Bell, R-Mena, seemed to have good intentions when he first introduced House Bill 1054 to amend the Freedom of Information Act.
Bell's bill has since become a Trojan horse, carrying a seriously destructive change to the law that has protected the public's right to know for almost 50 years.
First, consider what candidate Bell was saying last year and what Rep. Bell said as recently as a couple of weeks ago, when he sought support from the Arkansas Freedom of Information Coalition.
Bell's stated concern was with executive sessions, the secret meetings of public governing boards that are allowed by the law in certain limited circumstances.
Most any advocate of the state's open meetings law would be on board with that concern.
Many a governing board that was supposed to conduct the public's business in the open has slipped into an executive session where no one except those in attendance really knows what was being discussed.
The FOI law permits such executive sessions "only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee." But the temptation to stray to other subjects while out of the public eye is great, sometimes too great to resist.
So, along comes Rep. Bell with a bill that would require such sessions to be recorded and the recording reviewed by a local prosecutor or his or her designee to be certain that an executive session was held lawfully.
It was well intentioned but impractical. Count the number of city councils and school boards in any county in Arkansas. Add the quorum court and any number of other committees subject to the FOI Act that could meet in any given week or month. Multiply the number by 75 counties and add on the state-level boards and commissions that are also subject to the FOI Act. Now imagine the workload added for prosecutors or designees to review all executive sessions.
Granted, the responsibility for compliance is now with the elected and appointed members of public bodies who go into executive sessions. Conscience is their real guide to compliance. They believe in protecting the public's right to know or they don't.
Consequently, it would be a good idea to keep a recording of executive sessions, just in case of an investigation into a given secret session or that rare time when a challenge ends up in court. There would be evidence -- beyond the testimony of the participants -- as to what took place.
FOI Coalition members told Bell they liked that aspect of his legislation but didn't support Bell's bill.
Since then, Bell, this supposed champion of the public's right to know, accepted another amendment to House Bill 1054 that is absolute anathema to transparency in government.
It would allow attorneys to sit in on executive sessions, presumably to control what is said or done in secret.
This change would immensely weaken the law, most likely increasing the frequency of executive sessions and making all the more suspect what is said in such secret settings.
This debate over allowing attorneys into executive sessions is almost as old as the law itself.
The FOI Act specifically limits who may be present in such sessions. Never, since the 1967 passage of the law, has that group included attorneys.
The governing body may be present and so may, in some instances, an employee, the employee's immediate supervisor and the agency's chief administrator. That's it. No attorneys allowed.
It's not that the attorneys haven't tried to change that part of the law. Bills to allow attorneys to meet privately with governing boards to talk about pending litigation and much more have come up frequently in the past 48 years but have been defeated.
Bell's bill must be defeated, too. It would harm more than help transparency in government.
And it would upend a long, strong legacy of freedom of information in this state.
Credit the Gov. Winthrop Rockefeller, a Republican, and a Legislature controlled by Democrats for putting the law on the books. Its passage was a hallmark for Rockefeller's administration and an amazing accomplishment for that Legislature, where not one dissenting vote was cast for the Arkansas FOI Act.
State courts have been equally strong in upholding the law over its lifetime.
A 1968 decision of the Arkansas Supreme Court specifically confirmed that meetings between the North Little Rock City Council and the city attorney should be open under the FOI Act, which the court said must be "construed most favorably to the public."
It was the first in a long line of cases that have upheld the public's interest in this simple concept of open government.
The question for this Legislature is whether it will be part of that legacy or part of its undoing.
Brenda Blagg is a freelance columnist and a member of the Arkansas Freedom of Information Coalition. E-mail her at [email protected].
Commentary on 02/04/2015