Understanding the impact of SB 373

There has been much discussion about Senate Bill 373, a proposal in the current session of the Arkansas Legislature that would temporarily exempt from the Arkansas Freedom of Information Act (FOIA) attorney-client communication and attorney work product records that pertain to threatened or pending litigation against a public agency. The bill addresses a problem that exists for public agencies such as cities, counties, school districts, state agencies, institutions of higher education and others.

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JonathanPortis says...

Shorter version: We got caught with our hands in the cookie jar a few years ago and learned a valuable lesson -- hide everything, especially evidence of malfeasance.

Posted 19 March 2017, 10:43 a.m. Suggest removal

RobertSteinbuch says...

SB373 would gut the FOIA by creating an exemption that would allow bureaucrats to hide huge troves of public records under the patently false assertion that they're helping Arkansans. In fairness, though, this will make Maxey's job easier. Regrettably, the recent troubles at UA resulting in firings, "resignations," and the AG's rejection of Maxey's office's "interpretations" of the FOIA highlight her personal interest in changing the law for a small number of bureaucrats.

Moreover, Maxey's statements are demonstrably wrong. Maxey claims that the Edmark case prevents court orders of protection. The treatise on the Arkansas FOIA, which I co-authored with John Watkins and Richard Peltz-Steele -- & which she cites -- says the opposite. Any party can get an order in state court restricting anyone (not only litigants) from accessing certain records under the FOIA in order to protect the fairness of the judicial process. Edmark merely said that a party can't get a blanket order exempting all attorney-client information.

Maxey contends that my book says that the government is at a "severe disadvantage in litigation." It simply does not.

Her second quote is accurate: the FOIA "can give an edge to opponents in settlement negotiations." But Maxey fails to disclose that this "edge" won't change with SB373. The right of citizens to open government allows anyone to gather all public records, not just those relevant to litigation -- which is what private litigants gets. For Maxey to dispose of this edge, she would need to do away with the FOIA entirely -- not just the records in SB373. Perhaps that is her preference. Indeed, Maxey would also need to dispose of the law preventing the government from entering into secret settlements if she wants equal footing with private entities that owe no duty to taxpayers. Does she want that law too?

Moreover, Maxey never mentions the severe disadvantage the little guy has in litigating against city hall, with its virtually unlimited public funds and teams of lawyers. Private litigants often need to write big checks to lawyers. Bureaucrats merely need to pick up the phone and she must answer.

Regrettably, Maxey didn't explain that SB373 (which her office surreptitiously drafted) will be used to shield all sorts of wrongdoing from the public. In Illinois, the university used various FOIA provisions to hide sexual assault by a softball coach. (Illinois has the exemption that Maxey seeks.)

Maxey's falsely claims that SB373 won't affect "typical" FOIA requests by citizens and press. If she were right, then why have the Press Association, the Advance Arkansas Institute, multiple citizen-FOIA groups, and both I and my co-author on the Arkansas FOIA treatise, Richard Peltz-Steele, publicly opposed SB373?

The parochial interests of a few government bureaucrats shouldn't trump transparency to the whole state.

Posted 19 March 2017, 4:20 p.m. Suggest removal

JonathanPortis says...

Reporters for the Democrat-Gazette conducted prize-winning investigations into financial chicanery at both UA and UCA. Yet the newspaper's editorial writers have been timorous and vague about supporting the Freedom of Investigation Act that led to those successful investigations. Why would this newspaper allow the legislature and higher education to rape the FOI?

Posted 19 March 2017, 8:41 p.m. Suggest removal

skeptic1 says...

I can think of one lawsuit recently filed in Federal Court against a huge state agency where state employees lied about their actions and had the emails of the individuals not been subject to FOIA no one would have ever known and the horribly wronged Plaintiff's would have been denied their day in court. ALL state employees serve at the pleasure of the public, their salaries are public record and any emails originated or received on a state or federal computer is the property of the tax payers and should never be exempted. I am quite sure the case I mentioned is the fuel behind this proposed bill and as with all controversial bills, follow the money.

Posted 21 March 2017, 10:45 a.m. Suggest removal

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