Will legislators use a machete or a scalpel when changing the state’s Freedom Of Information Act (FOIA) this session?
If advocates for open government and transparency hadn’t spoken out against Senate Bill 373 a couple weeks ago, it’s pretty clear to me that legislators would’ve been content to use a machete.
Originally, SB 373 would have exempted all attorney-client communications from the state Freedom Of Information Act (FOIA). This legislation sailed through the Senate with little opposition, but it was amended after it started receiving some pushback in the House. The amended legislation would add “a record that constitutes an attorney-client privileged communication or attorney work product” to the list of records exempted from requests under the FOIA.
Unfortunately, this amendment did nothing to fix the problem: namely, a new exemption that was so broad that it would have made the state’s FOIA essentially meaningless in many cases. Under this exemption, any e-mail between a government employee to his/her lawyer wouldn’t have to be disclosed under the FOIA if it were deemed privileged information. Worse yet, the government’s attorney would unilaterally get to decide what was deemed privileged.
Another amendment proposed by state Rep. Bob Ballinger yesterday would create an alternate exemption — one that included “attorney-client communications and work product strictly related to pending or threatened litigation.”
The exemption would expire 90 days after the close of litigation or an associated appeal — or one year after the date of the threat of litigation if no litigation is initiated.
On Sunday, the Arkansas Democrat-Gazette revealed that a team of lawyers, paid directly by the University of Arkansas and indirectly by taxpayers, have been working with Ballinger to draft the changes that he is sponsoring. (Thank you, Freedom of Information Act!) The newspaper’s revelation may have come as a surprise to the unsophisticated among us, who might have mistakenly believed that the central mission of a university is to create and propagate knowledge, rather than to suppress it.
Ballinger said in an interview that his amendment strikes a balance that protects the FOIA and brings “fairness” to government attorneys involved in litigation.
A friend of mine is working on facilitating one more meeting with someone. Out of that meeting,- if someone can show me another way to accomplish the purpose of creating some fairness in the litigation and further protect FOI and transparency…I’m open to it. I’m happy with this bill unless somebody can show me that there’s still a need to make further amendments to it.
Ballinger said that it’s possible the amended legislation could be heard in the State Agencies and Governmental Affairs committee tomorrow morning.
Although the amended legislation could be said to narrow the scope of the initially proposed FOIA exemption (actually, it doesn’t narrow it in the slightest; it simply makes some instances of the exemption expire after some time period has passed), it still places tremendous faith in the discretion of government attorneys not to use expansive interpretations of “attorney-client communications and work product strictly related to pending or threatened litigation.” That kind of faith is at best naivete, and at worst it is bad faith: because attorneys are charged to pursue the interests of their clients, there is no doubt that — as a practical matter — Ballinger’s newest proposal will encourage government attorneys to do their best to satisfy their supervisors. Sadly, this means that such attorneys will have been given a systematic incentive to persist in supplying aggressive interpretations of FOIA — to the detriment of the public. (The real problem here, which we fear Ballinger and his friends at Fayetteville have overlooked and that we suspect plenty of government lawyers will overlook in the future, is that a government lawyer’s supervisor is only the client in a shallow and contingent sense. The real client of every government lawyer is the public.)
Supporters of Ballinger’s newest proposal might reply that bad actors can already cut corners in order to deny private citizens’ requests for information. But anyone who is genuinely concerned about ethics in government should shy away from any proposal that provides new avenues for bad actors to act even worse.