Arkansans set a high bar for Kentuckians in responding to their governor’s direct assault on the state’s public records law, and their message is clear: Stop putting the public’s interest last yet again.
As one critic loudly proclaimed, “Avoiding public scrutiny is neither bold nor conservative; it’s weak and reactionary. Requiring elected officials to obey the law isn’t ‘weaponizing’ the law.”
Kentuckians should heed what’s happening in Arkansas in the likely event of an attack on Kentucky's open government laws in the 2024 regular session.
Arkansas mimics Florida; Kentucky at a disadvantage
Arkansans had a marked advantage in this regard: three whole days to organize their opposition to Gov. Sarah Huckabee Sanders’ call for a special legislative session to, among other things, overhaul the state’s Freedom of Information Act.
In a Friday press conference to announce the special session commencing Monday, the governor claimed that the Arkansas public records law “slows state government operations and exposes her and other constitutional officers to security risks.” On the pretext of modernizing the law, she lamented that it is being “weaponized” to “slow down our bold conservative agenda.”
Following in the hallowed footsteps of her Florida counterpart, Ron DeSantis, Sanders is determined to shield her travel records from public scrutiny. But that’s only aspect of her multi-part scheme to upend open government in Arkansas.
Her bright idea to dim the sunlight in Arkansas includes:
- Creating a new deliberative process exemption to substantially reduce the information Arkansans can obtain through the state FOIA about the deliberations of officials’ policy recommendations and other governance matters.
- Making it more difficult for an attorney or individual winning a FOIA claim to recover attorney fees and other reasonable expenses.
- Including a “retroactivity clause” that would apply new state FOIA exemptions to requests dating back to Jan. 1, 2022.
Public condemnation of Sanders’ ‘stealth bomb’
In less than 24 hours — more like 24 minutes — Arkansans swung into action to defend their half- century old public records law. I could fill a monograph with quotations drawn from the stirring defense of the Arkansas Freedom of Information Act that appeared in a single day.
It is this level of media and public outrage — this organized and immediate call to action — that is the last, best hope for dissuading the proponents of the anti-transparency agenda in Kentucky — a line that traces its recent origins to the likes of former Gov. Matt Bevin, Senate President Robert Stivers, and Attorney General Daniel Cameron.
- The first declared the actuarial analysis of his public pension reform plan, his travel records, and his executive pardon records none of the public’s business.
- The second histrionically asserted the necessity of legislative secrecy as the basis for excluding the General Assembly and the Legislative Research Commission from the open records law.
- The third exploited his role as open records and open meetings administrative adjudicator to divest the public of its long recognized right to public records based on their content and not their location, its ability to assess the propriety of a closed session, and its expectation that public officials' discussions of public business will be conducted in a public forum (not by email).
Sadly, Kentuckians are at a disadvantage. Whereas Sanders gave opponents of her assault on that state’s Freedom of Information Act a whopping 72 hours to organize, Kentucky lawmakers are determined to keep the public entirely in the dark about the schemes they are hatching for the coming legislative session — until they are hatched.
Kentuckians have no way of knowing if Arkansas is a preview of what we can expect in the upcoming legislative session.
This is because the General Assembly’s supermajority is keeping a tight lid on the bills that will be introduced in the 2024 regular session. The past practice of posting pre-filed bills was statutorily eliminated in 2022’s HB 10. The more controversial the bill, the less likely the public is to know about it until the 2024 Regular Session is upon us. This severely handicaps the ability of stakeholders to engage with lawmakers and to alert the public to legislative threats to existing law.
Given the fact that similar laws aimed at limiting the public’s right to know were enacted in Florida earlier this year, and have been introduced in Arkansas, this may represent a national legislative playbook. Unfortunately, we are unlikely to know until it is too late.
RIP government transparency?
No less than Republican President Gerald R. Ford once declared, “In a democracy, the public has a right to know not only what the government decides, but why and by what process. The Government serves and the people rule.”
Times have clearly changed. Sadly, these changes include a burgeoning assault on open government.
The reason is clear: Open government laws are the Great Equalizers. Today’s public officials do not like an equal playing field in which we are all equipped with the same knowledge and information.
To the extent our lawmakers see fit to afford us a glimpse into their machinations, keep a watchful eye, Kentucky. To borrow a phrase, it is our right to know – not merely a privilege – that officials are threatening.