OPINION — Editorial

No there there

The empty threat from the FOI

For weeks now, the public has been told that its business was none of its business. Or shouldn't be. And officials and lawyers from a couple of bigger universities in this state have complained that they were at a disadvantage because of the FOIA law here in Arkansas.

You see, whenever a suit is filed against a college or university, the other side gets to use the state's Freedom of Information Act to get notes and strategic information from the colleges. And the other side gets an advantage, doncha know.

And the college lawyers need help!

Help in the form of state Senate Bill 373, which is this year's rascal of a bill in the Arkansas Legislature.

The bill reads like it would allow any bureaucrat in government to copy a paper to the agency's legal department and claim attorney/client privilege. Which would practically make the state's Freedom of Information law not much of one. Winthrop Rockefeller's legacy--or one of them--would be left in shambles.

But the public was told it was a necessity. Until . . . .

Until your statewide newspaper reported Friday that not the University of Arkansas system, nor the one for Arkansas State University, could come up with a single documented case in the past two years in which opposing counsel used the FOIA to get a leg up on them. (Neither could the state Highway and Transportation Department, which has also been heard from in this debate.)

Birds got to fly, lawyers got to hurriedly explain what your lying eyes are telling you.

It's the threat of opposing counsel using the FOI laws that's the problem, they told the paper. Government lawyers are sore afraid of writing to each other because of it. (You know how lawyers hate memos.) Or as Nate Hinkel, the UA's System spokesman, put it in an email:

"Each time our lawyers prepare for a deposition, they know their deposition outlines might be requested before the actual deposition date. Because of this, particularly when dealing with opposing counsel who have a propensity to use FOIA during litigation, the lawyers in our office have to consider the timing of when they prepare for the deposition and what they put down in writing. Having to practice in this fashion is a disadvantage to our lawyers and a disadvantage for the public because it is public dollars at risk."

Here's a better quote, from state Sen. Bryan King (R-Green Forest), who may speak for most of Arkansas:

"I don't think legislators understand."

You'd think that one of the sponsors of the anti-FOIA bill, state Rep. Bob Ballinger (R-Hindsville), would have similar thoughts about his bill as the spokesman above. But on KARN radio the other day, he didn't speak of possible FOI requests, or the threat of opposing counsel getting advantages, or the risk of giving up too much information. He was adamant it was happening. Just as it's been happening for years:

"But it's never been as bad as it is now. Now it's happening on a regular basis that they're abusing the FOIA process in order to get an advantage in litigation."

And yet, nary an example from the government attorneys.

Even some lawmakers sound confused. After being told about the specifics, state Rep. Kim Hammer (R-Benton) told the press: "I was definitely under the impression that this was a significant problem that required legislation."

Certainly, that was the impression some wanted to provide.

They just can't provide examples.

Let's not do this. Arkansas' Freedom of Information law is a shining example for the rest of the country. And has been for a generation. Our lawmakers shouldn't be stampeded into ruining the thing just because some lawyers are jittery. And, even worse for lawyers, lacking in specifics.

Editorial on 03/27/2017

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