I read Joann Maxey’s opinion piece in Sunday’s Democrat-Gazette. It is a shame that the General Counsel to the University of Arkansas, who receives a $190,000 taxpayer-funded annual salary, has made several untrue statements in order to support an awful bill, SB373.
SB373 would gut the Freedom of Information Act by creating a huge new attorney-client communication and work-product exemption for both current and future litigation that would allow bureaucrats to hide vast troves of public records – on the theory that they’re helping Arkansans by avoiding transparency. In fairness, though, this new expansion of government secrecy will accomplish one thing: it will make Maxey’s job easier. (Notably, nowhere in her defense of SB373 does she acknowledge that her office had a hand in writing it.)
Regrettably, the recent troubles at the University of Arkansas — resulting in firings, “resignations,” and the Attorney General’s wholesale rejection of the U of A’s interpretations of the FOIA — underscore Maxey’s personal interest in changing the law to the benefit of a small number of bureaucrats.
Maxey is entitled to her own opinion on these matters, but (as the saying goes) she isn’t entitled to her own facts – and her op-ed contains a number of false statements, some of which she attributes to me.
She incorrectly asserts that the book I co-authored says that the government is at a “severe disadvantage in litigation.” This statement is simply not in our book, The Arkansas Freedom of Information Act (currently available from the University of Arkansas Press).
Her second attempt to quote from our book is, in contrast, technically accurate: she notes that our treatise says that the FOIA “can give an edge to opponents in settlement negotiations.” What Maxey fails to disclose is that this won’t be eliminated through SB373. The FOIA provides for public transparency. As such, the right of citizens to open government allows anyone to gather all public records, not just those relevant to litigation (the more limited standard available to private litigants). In order to dispose of this advantage — the necessary byproduct of public transparency — she would need to do away with all disclosure under the Freedom of Information Act, forever. Indeed, Maxey would also need to dispose of the law preventing the government from entering into secret settlements if she really wants to be on equal footing with private entities that owe no duty to taxpayers. Does she want to change that law too?
Maxey also claims that the Edmark case prevents court orders of protection in individual cases. Our treatise demonstrates that the opposite is true. Any party can get an order in state court restricting the ability of anyone else (not only litigants) to certain records under the FOIA, in order to protect the fairness of the judicial process. Edmark simply said that a party cannot get a blanket court order exempting all attorney-client information absent such a showing. Maxey’s decision to represent the case as holding the opposite of what it does is bad lawyering, and such behavior would be sanctionable if made in court in a formal pleading. Maxey fails to address the pages of discussion of Edmark in my co-authored treatise, as well as the statement therein that “a [state] court can issue a protective order to ensure that a litigant receives a fair trial.”
So, in summary, on the relevant caselaw, Maxey completely ignores the significant discussion on point in my co-authored book; then she provides what she claims is a “quote” therefrom that isn’t actually in the book; and, finally, she provides an accurate quote that doesn’t support the exemption she wrote for her minions in the legislature. The overall mission of her piece is a significant dismantling of the FOIA to make her job easier.
If that were not bad enough, Maxey never mentions the severe disadvantage the little guy has in litigating against City Hall, which has virtually unlimited public funds and teams of lawyers. Private litigants often need to write three- or four-figure checks to lawyers. The bureaucrats she defends in court on the taxpayers’ dime merely need to pick up the phone. And any award of damages against the state can only occur in those circumstances in which the legislature decided to waive sovereign immunity to afford injured Arkansans a remedy in law for wrongdoing by state actors with highly paid government attorneys.
Regrettably, Maxey’s piece never explained the bottom line: that SB373 will be used to shield all sorts of wrongdoing from the public. In Illinois, the university system used various provisions in their FOIA to hide sexual assault by a softball coach. (Illinois has the exemption that Maxey seeks for Arkansas.)
Maxey claims that SB373 won’t affect “typical” FOIA requests by ordinary citizens and the press. But this suggestion should cause us all to ask: why have representatives of the state Press Association, the Advance Arkansas Institute, and multiple citizen-FOIA groups (as well as both me and my co-author on the Arkansas FOIA treatise, Richard Peltz-Steele) all opposed the bill?
We can do better and we should. The parochial interests of a few government bureaucrats shouldn’t trump the benefits of transparency to the whole state.