FAYETTEVILLE -- The public insists that public officials who willfully withhold public records or conduct public business in secret should be sued, according to supporters of a Freedom of Information amendment to the state constitution.
"That's what we're hearing most at each of these public meetings," said Jen Standerfer of Arkansas Citizens for Transparency. She and other amendment supporters held a town hall meeting in Fayetteville on Thursday with others being held around the state.
Expanding the penalties for violating the state's Freedom of Information Act is the most consistent request the public has had at these meetings, Standerfer and other Arkansas Citizens for Transparency members said Thursday.
"The objection we hear the most is that people can't get prosecutors to act on violations of the FOI," she said.
Standerfer is a Bentonville resident and attorney who used to work for Legislative Research, the staff for the state that drafts legislation. She is one of the volunteers working on drafting the amendment proposal.
Former state House member Nate Bell and attorney Joey McCutchen of Fort Smith conducted Thursday's town hall with Standerfer. The meeting began at 7 p.m. at St. Paul's Episcopal Church in Fayetteville.
The draft posted by the group proposes a minimum of $1,000 in penalties for willful violation of FOI provisions and that the public official who violates the provision be personally liable. The reason to make the money come out of the officeholder's own pocket is to avoid the taxpayers bearing the burden of paying for the violator's actions, Bell said.
"You don't want someone to intentionally violate the law at taxpayer's expense," he said.
The biggest objection to the personal liability provision heard so far is that it would discourage people further from running for office. There is some validity to this objection, said Sarah Moore, a Fayetteville City Council member who attended Thursday's meeting. "It's a lot of time and trouble and little money to serve already," she said. This would be one more risk, she said.
Arkansas Citizens for Transparency is aware putting personal liability into the FOI law is a big change, Bell said. The threshold in the draft amendment so far is to require any violation be "clear and convincing," a legal definition higher than the "preponderance of the evidence" standard for most civil penalties. Also, the proposed amendment will have clear definitions of terms that are vague in existing law so public officials will have clear boundaries of what would be a violation, he said. In particular, panelists said, the definition of what constitutes a "public meeting" requires a lot more clarity.
The proposed amendment is a long way from finished, the group members said. Arkansas Citizens for Transparency itself isn't even organized yet, with no status as a nonprofit or any other such organization. "We haven't had time," Bell said. Everything done so far is done by volunteers, he said.
The proposed amendment as first proposed was going to simply state the Freedom of Information Act as found in state law on Sept. 1 would be part of the constitution if voters approve it. Supporters hope to get the amendment proposal on the 2024 ballot by petition drive, which will require the validated signatures of 90,704 registered Arkansas voters. However, review of legal requirements, including case law in Arkansas and similar court cases in other states, convinced supporters the provisions need to be spelled out in the amendment language itself, the group members said Thursday.
The drive to enshrine the Freedom of Information Act in the constitution began after a special session called by Gov. Sarah Huckabee Sanders in September. An act curtailing the state's existing FOI statute passed the session after an earlier, much more restrictive bill faced pushback from a wide spectrum of individuals, groups and lawmakers. Arkansas Citizens for Transparency formed to put FOI provisions in the state constitution, which would make it much harder for the Legislature to curtail public access to records or allow governing bodies meet in secret.
It is hard to campaign against government transparency so Bell expects opponents of the bill will try to stop it in the courts to prevent the measure from ever getting on the ballot, he said at Thursday's meeting.
"This amendment would be thrown off the ballot," he said, gesturing toward an image of the draft amendment projected on a screen behind him.
A statement from the governor's office earlier Thursday in regards to the proposed amendment says "As the Governor has said, she is proud that legislation passed with bipartisan support to ensure the sources and methods used by law enforcement to protect constitutional officers and her family will be protected. Support that also includes the Arkansas Press Association and the Arkansas Broadcasters Association."
On the web
The proposed amendment: nwaonline.com/1027foia/
Source: Arkansas Citizens for Transparency