Are legislators attempting to fix a problem that doesn’t even exist?
According to a front-page story in today’s Arkansas Democrat-Gazette, it would appear that the legislature is on the verge of doing just that with Senate Bill 373.
This bill would create a huge new exemption in the state’s Freedom of Information Act (FOIA) for attorney-client communications and work product. The bill recently passed the House and may be brought up for a vote in the state Senate next week.
Advocates of this bill have argued that it’s needed because some attorneys have used the FOIA to request documents related to ongoing legal cases. Therefore — so the argument goes — this change is needed to restore fairness to the legal process for government attorneys and their clients.
The Arkansas Democrat-Gazette did some digging into whether this has been a problem in recent years. What they found might shock many legislators who voted for this law already.
From the Arkansas Democrat-Gazette story:
The remedy, the lawyers have testified, is Senate Bill 373. The bill would exempt attorney-client communications and attorney work product in “pending and threatened” lawsuits from disclosure under the state’s Freedom of Information Act.
Yet, in response to requests from the Arkansas Democrat-Gazette, not UA nor Arkansas State University systems nor the highway agency could cite a single, documented case in the past two years in which their attorneys were forced under the Freedom of Information Act to hand over legal strategies and other key documents to opposing counsel.
In other words: the same government lawyers who are saying we need to shrink the state’s FOIA to protect the state’s legal position can’t cite one real-world example of public information requests that unearthed legal strategies or litigation-related documents.
State Rep. Bob Ballinger is quoted in the story as saying (in a radio interview earlier this month) that attorneys have abused the FOIA for years, and that things are worse now:
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.
To say the least, it is hard to square this quote with the facts of FOIA described in the Democrat-Gazette’s story.
According to the story, there were three instances where government attorneys asked judges to shield legal papers from opposing counsels. The judge granted every single one of those three requests.
This means there’s already an avenue for government attorneys to block information related to their legal strategies on the very rare occasions it is requested under the FOIA by opposing attorneys.
(Notably, all three of those protective orders were granted in federal court — by three different federal judges. At this point, it’s important to note that some people differ about the power of judges in state courts to grant such protective orders. We will explore this issue in a future post.)
Hopefully, enough members of the state Senate read this story in today’s paper and kill this legislation. At best, it fixes a problem that doesn’t exist. At worst, it will make it much harder for average Arkansans to request information about what their government is doing.
Late Friday afternoon, we were able to reach Ballinger to get his reaction to the newspaper’s story. We’ll publish our interview with him this weekend.