After weeks of chiseling away at the Freedom of Information Act (FOIA), legislators now have
an opportunity to strengthen it by passing legislation introduced by State Rep. Clarke Tucker .
Tucker’s House Bill 1946 would amend the FOIA to give Arkansans an alternate avenue to
appeal FOIA requests that have been denied. Currently, when citizens’ FOIA requests are
turned down, the only two remedies available are filing a lawsuit or contacting the local
Tucker said in his testimony to the House State Agencies and Governmental Affairs
For every FOIA request in Arkansas history up to this point, the person who determines
whether the records should be made public is the custodian of the records. The fox is
guarding the hen house essentially. Ninety-five percent of the foxes out there are good
foxes, but there may be some bad foxes out there. This would create an avenue for an
independent, objective review for someone that’s not the custodian of the record.
Dan Greenberg , President of the Advance Arkansas Institute, said the legislation would
allow private citizens to appeal FOIA denials without undertaking the expenses of hiring an
The importance of this is not so much is that anybody can get a review with this process,
because you can always get a review with going to court. The whole point of the Freedom of
Information Act is that you should be able to get access to public records without writing a
check to a lawyer. This provides for an extension of the Freedom of Information Act’s
principle that you can go get a review without writing a three or four figure check to a lawyer
in order to get the information.
The two main criticisms of the legislation from lawmakers were that the bill requires the panel
to be made up of three attorneys, and that the panel might make some records public that
had been exempted under broad FOIA exemptions that it had previously passed.
State Rep. Kim Hendren said:
How come we don’t just put common folk on this panel? Why does it have to be you high
falutin lawyers? I don’t mind having one attorney or two attorneys, but when they’re all
lawyers I have a problem with that.
The reason the panel would need to be made up of attorneys is actually pretty obvious. The
panel would be a quasi-judicial panel whose decisions could be appealable to the courts. If
the panel’s reasoning isn’t supported by Arkansas law, there’s a strong likelihood their
decisions would regularly get overturned. Thus, it would really be a waste of time to form a
panel that lacked the legal expertise to make prudent decisions based on case law that
would hold up in court. That doesn’t mean non-lawyers are stupid. It just means the panel
needs a certain degree of legal expertise, rather than non-lawyers (like me) winging it like
Frank Abagnale in Catch Me If You Can .
State Rep. Andy Davis said:
somehow be overridden by a panel of three that are unelected. Are we not potentially giving
this panel the authority to override these exemptions that were passed by the Legislature?
While the panel wouldn’t be elected, the people appointing them would be. The panel would
be appointed by the Senate President, the House Speaker and the Governor. It’s possible
some of the broad FOIA exemptions passed by the Legislature recently could, in practice, be
narrowed by the panel — but only if it determined that the people’s interest in transparency
was larger than the government’s interest in secrecy. By passing this legislation, the
Legislature would be conceding that they aren’t infallible when it comes to FOIA and would
be placing a check on their sudden tendency to gut the FOIA through overbroad
exemptions.; this measure would allow something like common-law adjustments to secrecy
rules that are too broad .
The bill was taken down by Tucker today before a vote; it will likely appear before the committee again soon.