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.

From time to time when public entities are sued or threatened with lawsuits, attorneys use the FOIA to seek information that is traditionally exempt from discovery in court. Such records include written legal advice, draft legal strategy, outlines for depositions, draft pleadings, and other information that when disclosed can put public attorneys at a severe disadvantage in litigation. Because these records are not exempt under the FOIA, government attorneys often refrain from taking notes, writing memos to clients or emailing our fellow attorneys because those records may be released to opposing counsel under the FOIA.

The FOIA is a vital tool for the public to access information and hold government agencies accountable. But the law was never intended to place government entities at a disadvantage in legal disputes, particularly when taxpayer funds are at stake. That is why the act provides a "working papers" exemption to the Office of the Arkansas Attorney General. As the state's long recognized legal expert on the FOIA, former University of Arkansas law professor John J. Watkins noted in a 1994 Arkansas Law Review article, "The absence of a FOIA exemption for records falling within the attorney-client privilege or the work product doctrine places government lawyers in Arkansas under an enormous handicap in litigating against private parties or advising their clients on a day-to-day basis." This problem has only grown with the modern necessity of using digital communication to provide legal advice.

Even Watkins, Richard J. Peltz-Steele and Robert Steinbuch, authors of The Arkansas Freedom of Information Act, recognize that entities subject to the FOIA are at a "severe disadvantage in litigation" and that the FOIA "can give an edge to opponents in settlement negotiations." This issue is not unique to Arkansas, which is why more than 40 other states and the federal government provide some type of exemption for legal records in either statute or case law.

Lawyers at the University of Arkansas System have had requests for deposition notes, pleading drafts and email correspondence related to cases, among others. Some have argued the FOIA allows courts to order these types of records sealed during litigation; however, that is not always the case. In cases where litigation is threatened, there is no judge involved to hear a request for records to be protected. There is also no avenue for protection for cases in state court. The Arkansas Supreme Court held in 1990 in City of Fayetteville v. Edmark that the Arkansas FOIA trumps attorney-client privilege and work-product protection. The Court said it was up to the Legislature to exempt these records. While we have at times received protective orders for litigation in federal court, we know of no case where a state court has protected litigation records from the FOIA.

Critics argued that the original version of Senate Bill 373 was too broad, giving public agencies the ability to use it to shield records outside of the bill's intent. However, with the help of the bill's sponsors, Sen. Bart Hester and Rep. Bob Ballinger, the legislation was amended to address concerns. As amended, the exemption only applies to attorney-client and work product records in the context of threatened or pending litigation. It also provides that the exemption expires after the litigation is concluded. These amendments help strike a balance between the need for open government records and giving public agencies a fair day in court.

Despite what has been said and written about this bill, it would have little impact on the typical record requests from the press or the general public. Those impacted will be a handful of trial lawyers who are using the FOIA to gain an unfair advantage in litigation. In practice, it would allow public lawyers to write down advice and strategy that they currently avoid because their records may be released.

Ultimately, any exemption to the FOIA must serve the public interest, and as Watkins notes, "The public's interest is ill-served when government attorneys must reveal trial preparation materials, attorney-client communications and similar sensitive records to their courtroom adversaries." Senate Bill 373 addresses this problem in a limited, responsible way.

JoAnn Maxey is General Counsel for the University of Arkansas System.

Editorial on 03/19/2017


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

libertas2u 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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