The Senate sponsor of a bill intended to shield attorney-client communications in government agencies from the state's open-records law said Monday that he decided not to push for Senate approval of his House-amended bill because "it would have caused a lot of grief" for his colleagues in the Senate.
Last week, Senate Bill 373 by Sen. Bart Hester, R-Cave Springs, failed to clear the Senate in an 11-14 vote that fell seven votes short of the 18 votes required for approval in the 35-member chamber. The vote was then expunged to make way for a possible future vote.
SB373 would exempt from public disclosure "a record related to pending or threatened litigation that, if kept by a private attorney for a nongovernmental entity, would be privileged from disclosure as an attorney-client communication or attorney work product record" under court rules -- Arkansas Rules of Civil Procedure, Arkansas Rules of Evidence or Arkansas Rules of Professional Conduct.
The exemption under the Freedom of Information Act would expire either 90 days after the closure of litigation and any associated appeal, or a year after the date of the threat of litigation if no litigation were initiated.
Hester said Monday in an interview that he decided Sunday not ask the Senate to concur with the House-approved amendment to the bill. He said he didn't come to Little Rock on Monday before the Legislature recessed the regular session because he's a contractor who needed to work.
He said he believes that he could have "dragged" the bill through the Senate. A handful of senators, whom he didn't name, told him that they would vote for it "if you really needed me to do it," though they were dealing with people who didn't understand the bill, he said.
"I would have caused a lot of grief" to push these senators to vote for the bill and force them to go back and explain the bill hundreds of times, Hester said. "I thought that was asking too much of my colleagues when I have already asked a lot of my colleagues on a lot of different bills."
He said his House-amended bill would provide "a temporary" narrow exemption to the FOI and would have allowed government attorneys to do a better job of advising their agencies. He said he will work on the possibility of finding different language for a similar bill in the 2019 regular session or possibly combine the bill with other legislation for a future special session. The governor decides what's on the call in special sessions.
Gov. Asa Hutchinson said he had some reservations about the breadth of the language in the bill, but he hadn't made a final decision on what he would have done if the Senate sent the bill to him.
Tom Larimer, executive director of the Arkansas Press Association, said Monday he doubted that Hester had the required 18 votes to approve the bill.
"I don't think [Senate approval] was going to happen," he said, noting the bill "was beaten once" in the 11-14 vote last week.
Larimer said the House-approved amendment to SB373 "was cosmetic at best" and didn't address his concerns about "the damage" SB373 bill would do to the Freedom of Information Act.
Attorneys for the Arkansas State University and University of Arkansas systems and the Highway and Transportation Department testified for the bill before lawmakers, while news media representatives and open government advocates testified against it.
A spokesman for the ASU System said Monday, "We respect the decisions of the General Assembly, and it's premature to comment on future plans.
"Our objective was to put our universities in the best position to protect state resources and maintain a fair judicial process," said ASU System spokesman Jeff Hankins.
A Section on 04/04/2017