State lawmakers file new bills that would allow officials to shield records from public

SB9, HB1009 filed after late night at the Capitol

Senator Bart Hester, R-Cave Springs, speaks in the well during a meeting of the Senate in special session on Monday, Sept. 11, 2023. Hester explained that he was still in the process of writing a bill that would change sunshine laws in Arkansas, and asked the senate for an indefinite recess until he finished writing the bill. (Arkansas Democrat-Gazette/Stephen Swofford)

Gov. Sarah Huckabee Sanders' plan to overhaul the Arkansas Freedom of Information Act, broadening the kind of documents that can be kept from the public, hit a snag Monday.

Plans to hold a hearing on the bill in a Senate committee Monday evening fizzled out after the House of Representatives' efforts stalled in the morning as lawmakers convened for the first day of a special session.

The Republican governor called lawmakers to the Capitol for an extraordinary session to take up bills overhauling the state's open records law, cutting income taxes and banning covid-19 vaccine mandates for government workers.

But while bills to cut tax rates and prohibit a vaccine mandate sailed through Senate committees Monday, legislation to overhaul Arkansas' law on public disclosure and open meetings stalled.

[DOCUMENT: Read House Bill 1009 »]

[DOCUMENT: Read Senate Bill 9 »]

Late Monday evening, lawmakers filed two new companion bills, House Bill 1009 and Senate Bill 9, that would allow government officials to shield an expansive list of government records from public disclosure. Specifically, the bill would exempt "records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department."

Documents "prepared by an attorney," representing a state official or agency that could be used in pending litigation or "anticipated in light of a plausible threat of litigation," could be shielded from public view under the bill. If the government denies a records request it would have to "provide the requester the written documentation of the plausible threat of litigation," under the bill.

The bill, which Sanders said was a measure to shield sensitive information about her protection detail from records requests, would exempt records "that reflect the planning or provision of security services provided" for constitutional officers. However, with pushback from lawmakers Monday, Senate President Pro Tempore Bart Hester, R-Cave Springs, said senators filed a new bill that would address concerns about the old bill that was filed Friday.

Additionally, communication from the State Police concerning their duties protecting the governor would be exempt from disclosure and would be retroactive to June 1, 2022. The bill also would require state police to issue quarterly reports to lawmakers that list the aggregate expenses of the governor's protection detail. However, some documents about her security, such as those related to "sources, methods and patterns," should be exempt, Sanders said Friday.


Hours after the Senate adjourned late Monday afternoon a new bill had yet to be filed, as a crowd in a committee hearing room at the Capitol eagerly waited to give their comments on the bill. Around 7:15 p.m. Hester informed the crowd that a new bill had yet to be filed and the planned hearing was called off.

"It's just not ready," Hester said. "We just simply do not have a finished product to even hear."

Hester's announcement led to a contentious back-and-forth with the crowd, who chastised him for supporting the bill and pleaded with Hester to delay a Senate vote so the public would have time to read the new bill. Hester said he wanted to give the public an opportunity to speak on the bill and that he came to the committee room to offer some transparency about the lawmaking process.

"I had more than 18 Republicans to pass this bill off our floor today. I still do right now, the original bill," Hester said.

While it is unclear whether there are enough votes to advance the bill out of the Senate Committee on State Agencies and Governmental Affairs, Hester said multiple times that he had a Senate majority ready to vote for the legislation. Hester said lawmakers worked on drafting a new bill, taking input "mostly from people in this room."

"But this is a product of people in this room continuing to influence this bill, and that should make you happy, right? That's OK," he said.

Sanders had met privately late Monday morning with the Senate Republican caucus for about 30 minutes. Asked whether she is open to changes to the bill, Sanders said, "We'll keep you posted."

Things were no less chaotic in the House, as the chamber conducted little business on the first day of the session as repeated attempts to suspend some of the chambers' rules failed.

Republican Rep. DeAnn Vaught, R-Horatio, presented three motions to suspend rules on the minimum amount of time a fiscal impact statement needs to circulate, the amount of times bills had to remain on the desk before passage, and the time of notices needed before a committee meeting.

After votes to suspend certain House rules failed, Speaker Matthew Shepherd, R-El Dorado, gaveled the House into recess so it could confer on a new schedule for the special session. After a brief break, the House attempted again to change the rules, this time with Rep. Jon Eubanks, R-Paris, asking members to expunge their earlier vote, which again failed.

Due to the lack of rules changes, House committees did not meet, Shepherd said.

Arkansas House Majority Leader Marcus Richmond of Harvey said the House Republican caucus met with Sanders on Monday morning.

Some members of the caucus had questions about how the open records bill Sanders has endorsed would affect the state's Freedom of Information Act. Most of the questions concerned the deliberative process and attorney-client privilege provisions of the bill, Richmond said.

When asked Monday morning if he thought the bill had enough votes to pass, Richmond said, "I just can't make the call."

"There's a lot of pushback, and some of it is very specific to the members and the district that they have," he said. "I've always told the caucus members you have to vote your district."

Unlike the House, the Senate voted to suspend some of its rules, something Hester told the crowd at the committee room was "very standard of the special session process."

Fellow Republican Sen. Bryan King of Green Forrest interjected, saying, "No, it's not." Hester then asked King if he would like to answer questions for him instead and left the committee room.

"This is not a transparent process," King said.

Also on Monday morning, the Arkansas Freedom of Information Act Task Force voted unanimously to oppose the bill. The task force, created through legislation in 2017, met via Zoom to listen to public comments and to vote on a recommendation.

"What this is going to do is take away the rights citizens have had since 1967 to see that deliberative process," Jimmie Cavin, a self-described Freedom of Information advocate, told the task force.


Sanders announced her special session plans Friday, including her plans to change Arkansas' Freedom of Information law, which is considered by some to be one of the more disclosure-oriented in the nation.

Sanders said the law, which was passed in 1967, was in dire need of an update and that she was worried about disclosing documents related to her security details.

Matt Campbell, an attorney and author of the Blue Hog Report blog, filed a request seeking records from the Arkansas State Police on how much the agency spent protecting Sanders. According to his lawsuit, Campbell has received some records, including documentation showing state police hired private pilots to fly the governor, but also requested other documents which were denied by state police.

Campbell also requested records on the agency's spending when state police accompanied Sanders on a trade mission to Europe in June, including costs for plane tickets and hotel rooms for her protection detail.

Sanders said the proposed changes to the Freedom of Information Act would put Arkansas in line with the federal government and states such as California, New York, Alabama and Oklahoma.

A previous bill, filed Friday, would have included a "deliberative process," exemption to include documents "that comprise part of the process by which governmental decisions and policies are formulated."

When asked about Campbell's records request, Sanders said the bills to amend the Arkansas Freedom of Information Act were not about "any one particular person."

As for the deliberative process exemption for state government, Sanders said it was needed to make government more efficient.

"Right now, a Chinese-owned state company operating in Arkansas could use their employees to FOIA for internal government documents," she said Friday.

The bill also would exempt records prepared by an attorney representing the state, something the bill's sponsor, state Rep. David Ray, R-Maumelle, said would protect attorney-client privilege. The bill also would make it harder for those who sue local governments under the Freedom of Information Act to recoup legal fees.

Currently under the Freedom of Information Act, a court shall assess attorney fees for the plaintiffs if they received a significant portion of their records request for lawsuits against local government agencies. The bill says the court may assess attorney fees for plaintiffs who "substantially prevailed," or if the defendant's position was "arbitrary or in bad faith."

Information for this article was contributed Michael R. Wickline and William Langhorne of the Arkansas Democrat-Gazette.

EDITOR'S NOTe: This story has been updated with additional information.