Arkansas records-law bill on hold for talks

Sponsor to review proposals

Sen. Bart Hester, R-Cave Springs, said Tuesday that he's temporarily holding in committee his bill intended to shield attorney-client communications of government agencies from the state's open-records law.

The House on Monday voted 53-13 to approve Hester's Senate Bill 373. Rep. Bob Ballinger, R-Hindsville, told representatives that the bill would solve problems for state attorneys who might have to disclose litigation strategies to opposing lawyers under existing law.

The Senate State Agencies and Governmental Affairs Committee voted Tuesday morning to concur with a House amendment.

But Hester said he's holding his bill in the Senate committee for further discussions.

"I've said since the very beginning I have no interest in being abnormally out of line with the [Freedom of Information Act]. I think it is the most important thing we have to keep legislators and bureaucrats in check," he said in an interview.

"My only intent was to allow government agencies to have a fair hearing in court, and Mr. [Dan] Greenberg brought up some good facts that he just firmly believes that's not the case here," Hester said, referring to the president of the Advance Arkansas Institute who is an attorney and former Republican state representative from Little Rock.

"I just want to slow down, understand where we are at, and hopefully come to an agreement. I'm going to look at Mr. Greenberg's amendments that he offered," he said.

Hester said he could propose another amendment to the bill, "but the thought right now is if you add another amendment it dies" with legislative leaders aiming to recess the regular session March 31.

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"I want to study what we have currently because some people who I really value their opinion like Rep. Ballinger feels like this bill is good," he said. "I just felt like I wasn't comfortable right then pushing for it. I just wanted a few more answers before I do that.

"I don't know when I'm going to run [the bill]. I've got eight days left and I've just got one step is all I have to do is to put it on the [Senate] calendar and run it, so I am going to take the time that I feel like is necessary," Hester said. "I don't believe for a second this guts [the Freedom of Information Act]. I don't even like that terminology. But I'm not interested in having unintended consequences here."

Greenberg said advocates of SB373 have repeatedly indicated that "it is important to preserve fairness in litigation ... and I am very much in favor of that, and all three of [the] proposals I have offered will do that in a much less intrusive and extensive way.

"This [bill] that is being considered has a much broader scope, and I'm really pleased to talk to anybody who is interested in the narrow scope that I think everyone publicly agrees on," he said.

Melissa Rust, vice president of university relations at the University of Arkansas System, told the Senate committee on Tuesday that it is "our intent to simply to try to protect attorney-client communication and work product only in the context of pending or threatened litigation until such time that the case is completed and then at the time those records would be available upon request."

"At the end of the day, we simply want a level playing field [with attorneys suing higher education institutions] because our funding for higher education comes basically from two sources. It's either general revenue that you give us or it's tuition and fees that we charge students and parents," she said.

More than 40 states "have some protection for attorney-client privilege, work product, whether by statute or by case law," she said.

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 the 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 upon the closure of litigation and any associated appeal, or one year after the date of the threat of litigation if no litigation were initiated.

A Section on 03/22/2017

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