Brantley: Let Women Pay To Get Public Information

(Guest post from Rep. Dan Greenberg)

On Thursday, the Arkansas Times speculated about the influence exercised over me by the Vatican. They’ve since followed up with two attacks on my latest ethics bill. In brief, this bill would give citizens who solicit information from their government and have their requests denied another avenue for redress: They could seek an opinion from the attorney general as to whether that refusal is proper under the state’s Freedom of Information Act (FOIA). (Currently, your only options when such a request is refused are to give up or hire a lawyer.)

Attorney General Dustin McDaniel criticized the bill, saying that “potentially hundreds of FOIA requests” would place a “heavy burden” on his office. The Arkansas Times blog then uncritically echoed the McDaniel line — Max Brantley wrote that he is “persuaded” that requiring the attorney general’s office to opine as to whether the law was being obeyed would “inundate the office with work.”

Brantley may be persuaded, but perhaps the rest of us are pedestrian enough to take arguments and evidence into account. The notion that the AG’s office would be flooded with paperwork strikes me as unlikely. Can there really be that many refused FOIA requests which are difficult to evaluate?

I suspect that the real problem of FOIA requests is not that there are so many of them that they greatly burden government bodies. Rather, the problem is that there are a relatively small number of meritorious requests which are denied because the deniers don’t know what the law is, don’t care what the law is, or are well aware that the requestor has no alternative but to shell out big bucks to a lawyer and go to court. But if you are a member of that small group of people, then to you it looks like a big problem.

That is the problem that my bill attempts to solve. If Brantley has evidence to the contrary – that, for example, there’s a whole bunch of FOIA requests that are denied regularly that raise complex legal issues — I’d be delighted to see it. But at this point, his empty assertions are unpersuasive.

It’s my guess that the merits of most denied FOIA requests, on their face, are pretty easy to evaluate. It should be easy to give a positive recommendation to any request for public records that doesn’t fall into one of the classic FOIA exceptions. It should be easy to give a negative recommendation to any request that falls outside of the duties that FOIA creates. And if a particular request is especially dependent on context and it is unpredictable how a court would rule on it, it should be easy to state the considerations that a court would take into account without making an ultimate judgment on the particulars of the case. A minimal administrative review of agency FOIA judgments is standard in many states and is needed in Arkansas.

John Brummett’s column today is a vast improvement over Brantley’s approach. I don’t agree with it all (I think Brummett underestimates the force of an attorney general’s written opinion in Arkansas, which is typically given a great deal of deference by government employees), but it intelligently recaps and analyzes several legal and political issues related to my FOIA proposal. It’s a big step up from the classic Arkansas Times methodology of applying intense scrutiny to the ideas of people you disagree with while accepting as gospel whatever those with your political viewpoint say.

I do think there is a significant possibility that the attorney general and I may come to consensus about FOIA reform. Yesterday, after I saw where he told a journalist that he would like to speak to me privately about FOIA reform, and just after I worked through the multiple layers of irony in that statement, I left a call with his office. I imagine we’ll get together next week and find some common ground.

Finally, just a word about “grandstanding,” which is a term of abuse that the state’s reigning political establishment resorts to with some frequency.  This is a term I never encountered until I was elected to public office, and it is not the first time people have used it in reference to me. I have never seen a definition of it. It seems to mean: “That guy’s advocating a good idea that I oppose, but I am too embarrassed to explain why.”

(Note: I want to thank the headline artists at the Arkansas Times for the inspiration for the title of this post. Some previous accounts of the Arkansas Times’s very unusual journalistic methodology can be found in the “Related Posts” links below.)

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7 thoughts on “Brantley: Let Women Pay To Get Public Information

  • January 10, 2009 at 7:44 pm
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    Crazy suggestion I am sure, but could the thousands of dollars of campaign contributions McDaniel received from law firms play a role in his opposition?

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  • January 10, 2009 at 8:23 pm
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    Well, even public officials are entitled to have their arguments taken initially at face value. It’s my opinion that he objects to the increased workload that the bill would create for his office. It’s a standard bureaucratic tactic to complain that any additional mission creates unbearable burdens. It is my job as a legislator either to demonstrate that the burden is relatively slight or to figure out a way to get his office additional resources.

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  • January 11, 2009 at 8:05 am
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    Since legislators are among the select group who are entitled to seek opinions of the Attorney General of this great state, why not revise your law to have the citizen who files an FOI which is subsequently turned down to simply follow the following steps:

    1. Submit a copy of their FOI, along with the answer provided by the agency or other governmental entity to which it was originally submitted to the citizen’s State Representative or State Senator, whichever they choose.

    2. Said legislator reviews the request, attaches a cover letter, prepared by Legislative Staff as most other legislative letters are prepared, and sends the denied FOI onward to the Attorney General in the manner requests for opinions are requested today.

    3.

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  • January 11, 2009 at 8:21 am
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    I apologize for my instance of happy fingers ending the above email in a most inopportune moment.

    Please indulge my attempt at completing the original post.

    Since legislators are among the select group who are entitled to seek opinions of the Attorney General of this great state, why not revise your law to have the citizen who files an FOI which is subsequently turned down to simply follow the following steps:

    1. Submit a copy of their FOI, along with the answer provided by the agency or other governmental entity to which it was originally submitted to the citizen’s State Representative or State Senator, whichever they choose.

    2. Said legislator reviews the request, attaches a cover letter, prepared by Legislative Staff as most other legislative letters are prepared, and sends the denied FOI onward to the Attorney General in the manner requests for opinions are requested today.

    3. The Attorney General, or rather his minions, opine as to the supposed legality of the FOI request and return said opinion to the requesting legislator. Said legislator then notifies and provides copies of the opinion to both the citizen and the denying agency/entity.

    4. Said legislator then mediates a resolution of the issue between the citizen and denying agency/entity. There still remains the possibliity that the denying agency/entity may refuse and wish to continue the FOI request denial through the court system.

    There really is nothing liste above that deviates from the current system of requesting opinions from the Attorney General. It just never has been done with FOIA requests.

    The positives are that more branches of government become involved. The inclusion of the legislative branch is that the knowledge of legislative impact upon FOIA is much more well known by legislators who might choose to direct legislative influence on the FOIA language. The legislators will now have first-hand-knowledge of what issues are out there regarding denials of FOI requests, number of requests denied, reasons, etc. Legislative staff can easily create a database, heck MSExcel would even work for this, to monitor and track the number of requests of this type to be forwarded through to the AG’s office.

    Again, thank you for your patience with my inability to produce the initial posting.

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  • January 11, 2009 at 9:30 am
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    Sunlight is the best disinfectant, right Max? I thought Mr. Brantley was a supporter of openness in government, or is that just when Governor Huckabee is involved, or just for a small group of people who have enough disposal income to hire an expensive attorney (we are not all married to attorneys), or maybe just when a liberal suggests that it is and not when a conservative does.
    I thought Mr. Brantley was for empowering state employees. Being a former Arkansas state employee myself that was one issue I generally found middle ground with my democratic friends, or maybe he is only when liberals propose legislation to do so.

    I think the real problem here might be that Mr. Brantley and liberals in general fell that are more intelligent than conservatives and when dealing with Rep Greenberg he can plainly see that even he can’t pretend to be intellectually superior.

    When trying to compensate for a deficiency Mr. Brantley maybe you should just but a 4×4 truck like Republicans do. You would look a lot less ridiculous doing that than challenging Rep Greenberg at every turn.

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  • January 11, 2009 at 3:53 pm
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    “… Mr. Brantley and liberals in general fell that are more intelligent than conservatives”

    If the shoe fits, where it.

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  • January 11, 2009 at 4:05 pm
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    If a “cycle” costs $10,000 to $12,000 and if the fertiility clinic performed 220 cycles for 210 women last year and if 50% to 60% had coverage, then, using the lower numbers, about 105 women required a transfer of about $1,050,000 from other premium payers through insurance companies to the fertility clinic, unles my calcultor is wrong. That certainly is a stupendously good law for those women and, especially, the clinic.

    No wonder Leslie Newell Peacock said in his lead paragraph, “[T]hanks to a state mandate.” A little gratitude would seem to be in order.

    Peacock also (idiotically?) said: “Though he claims not to be inspired by religious activists, and though he is Jewish and not Catholic, Greenberg’s proposal would sit well with the Vatican, which in mid-December said its position is that in vitro fertilization is unethical and that babies should be conceived only through intercourse.” Not only is Greenberg not Catholic and is not inspired, he says, by religion, he also did not want to ban in vitro fertilization. He only, quite sensibly this lapsed Episcopalian thinks, thought the beneficiaries should bear the cost, not the rest of us.

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