Brenda Blagg: Don't let secrecy win

State lawmakers hope to shred public access to records

Heads up, Arkansas.

The state Legislature is on the verge of doing great damage to Arkansans' rights to monitor the actions of government.

Last week, lawmakers advanced proposed changes to the Arkansas Freedom of Information Act, the 50-year-old law that guarantees public access to most public records and meetings.

Put that thought front of mind. This law is called "the people's law" for a reason. It brings the public directly into government by allowing those who are governed to observe those who do the governing. And it grants public access to records government keeps.

At least it has now for the 50 years since Republican Gov. Winthrop Rockefeller signed the Arkansas FOI Act into law.

What has been a strong law in the public interest, a source of considerable pride to Arkansans, may soon be terribly weakened.

In this session of the Legislature, the people's law is under fierce attack from people who want to deny access to the public, effectively hiding from public view some of the critical workings of government.

No fewer than 10 bills have been filed to closet specific public records from view of the governed. The worst of the bills may be Senate Bill 373.

Sen. Bart Hester, R-Cave Springs, filed the bill to exempt attorney-client communications and attorney work product from the FOI Act. Rep. Andy Davis, R-Little Rock, is the bill's House sponsor.

You may be thinking it makes sense to exclude others from such conversations and to close records of lawyers handling public business, but that ignores a fundamental fact.

The ultimate "client" involved in public litigation isn't the school board or city counsel or any other public entity. It is the public, the people who pay the bills, the same people this law will block out of the governmental process.

The public has an interest in whatever a public entity does that requires involvement of an attorney. That interest is arguably greater than in the day-to-day affairs of government.

Take, for instance, Fayetteville's pursuit years ago of an incinerator project the public ultimately halted.

The city issued and unconditionally guaranteed $22 million in bonds, without an election, to build the incinerator. The public later voted to reject the project.

The incinerator debate was a huge controversy in the city and a subject of obvious public interest. The people of Fayetteville actually stopped an expensive project the city's governing board had pursued.

The Springdale News (a predecessor of this newspaper) tried to report what was going on, but the city, which had used a Washington law firm, its own public attorney and another local attorney to represent its interests, refused access to records regarding the project and the tax dollars involved.

The newspaper sued and the eventual result was a 1990 Arkansas Supreme Court ruling that those records, including those held by outside counsel, were indeed subject to the state's FOI Act.

Significantly, the opinion cited the first of all legal challenges related to the state law. That was a 1968 Supreme Court decision that there was no attorney-client privilege in the FOI Act. The court asserted that laws enacted for the public benefit "are to be interpreted most favorably to the public," establishing the precedent that has been followed by successive courts.

That practice has, of course, reinforced the Arkansas FOI Act and given citizens added confidence that government in this state must be largely transparent.

The FOI Act has long had its detractors, many of them in the legal community.

Several different legislatures have considered bills to establish some sort of privilege for attorneys to meet with governmental bodies or to shield their work on behalf of public clients from the public itself.

All those past efforts failed, as former lawmakers ultimately recognized that their constituents have a right to know what their governments are doing -- especially when what they're doing is serious enough to involve an attorney.

So far, this Legislature seems oblivious to that public interest.

House Bill 373 flew through the Senate. Disappointingly, not a single senator voted against it.

It cleared the House State Agencies and Government Affairs Committee last week and is headed to the House floor. The bill did pick up a slight amendment on the House side, inserting the word "privileged" in the text. It's enough to require another vote in the Senate, if the House passes the bill.

Even the Arkansas Bar Association, which could be expected to back the bill, has said it is "too broad" and testified for more narrow language.

Regrettably, the bill is likely to pass.

Opposition to all of these recent attacks on the FOI has been led by the Arkansas Press Association, whose executive director wrote this week of a decidedly hostile attitude in the Legislature toward the media.

The animosity is fueled, suggested Tom Larimer in an APA newsletter, by anti-media sentiment in Washington, D.C.

But this hostility is being taken out on an Arkansas law that has long served the public interest in this state.

From its inception, the FOI Act was written as "the people's law." Journalists helped write it and have long defended it, but the law gives journalists no more rights than it gives any Arkansas citizen.

That's the real strength of the law and the reason citizens need to let their lawmakers know they want the FOI Act preserved, not destroyed.

Commentary on 03/05/2017

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