Should Arkansans claim victory and depart the field?
Arkansans are unable to agree on whether a compromise Freedom of Information Act bill – that focuses on public official travel records and has passed in the Arkansas Senate and a House committee – represents a full victory, partial victory, or no victory.
Disorganized lawmakers and an organized citizenry signal defeat
In the waning hours of Tuesday, September 12 – the second day of a special session called by Governor Sarah Huckabee Sanders – Arkansas lawmakers drafted a third “compromise” bill after listening to heated bipartisan testimony – mostly opposing the sweeping anti-transparency measures proposed by Gov. Sanders – during a marathon meeting of the Senate State Agencies and Governmental Affairs Committee.
One opponent testified:
“I used to think only two things united Democrats and Republicans in this state: love of our mothers and the Razorbacks. But I’m happy to find that their love of FOIA is a third.”
Sanders beat a hasty retreat, declaring: “I’ve asked the Senate and House to file a bill limited to security – the most critical and important aspect of FOIA reform. Nobody said changing the status quo would be easy, but this is a great starting place for making our government safer and more effective.”
Some viewed the compromise as a victory for transparency, if not democracy, as the people – Republicans and Democrats – joined forces to make their voices heard.
Others expressed concern that opponents yielded too quickly, and surrendered too much, in the name of compromise (and avoiding far worse changes to the Arkansas public records law).
What prompted the ill-conceived special session?
Although she denied the claim, many Arkansans suspect that Gov. Sanders called the special session, and proposed the transparency-gutting legislation, in response to a contested FOIA request for her travel records maintained by the Arkansas State Police. This is the same issue that Kentucky confronted in 2019 when then-Governor Matt Bevin balked on release of public records documenting his use of a Kentucky State Police airplane.
It is the same issue that Florida Governor Ron DeSantis coerced Florida lawmakers into legislatively addressing earlier this year by excluding public official travel records from the Sunshine State’s once robust public records law.
It’s unlikely that Kentucky’s supermajority will consider a similar open records exemption in the 2024 Regular Session unless the Republican candidate for Governor pulls off an upset win. Should that occur, the future of open government in Kentucky is in grave doubt.
But regardless of the outcome of the gubernatorial election, Kentucky’s supermajority poses a deepening threat to the Commonwealth’s open government laws.
Lawmakers with contempt for the law
Kentucky’s supermajority demonstrated its contempt for the public’s right to know in 2021 by exempting the General Assembly and Legislative Research Commission entirely from the open records law. The introduction of new exceptions to the law – once rare and usually accompanied by careful vetting with stakeholders – is now an annual occurrence.
The supermajority consistently ignores the requirements of the open meetings law – misconduct not unique to the Republican party but engaged in with unique hubris – notwithstanding the express language of the open meetings law and a 2018 circuit court opinion correctly determining that the General Assembly is subject to the law. It may be “business as usual” in the halls of the legislature but only if business is usually conducted illegally.
The legislative threat to open government in Kentucky
So why is the threat to open government posed by Kentucky’s legislature so profound in 2023?
It’s because multiple open records and open meetings cases are now in Kentucky’s appellate courts. These cases will, in a very real sense, decide the future of our own open records and open meetings laws. In moments of doubt, those who fight to preserve what remains of our open government laws question whether these efforts will be for naught should Kentucky’s legislative supermajority cast its eye on up-ending our nearly half-century old laws recognizing that “the formation of public policy is public business” as well as decades of legal interpretation favoring the public’s right to know.
What was once an enforceable statutory right may one day be a vague and unenforceable memory.
The Arkansas model: a call to action
And that’s where the unfolding events in Arkansas come into play.
As I write, the scaled-back Arkansas FOIA bill is making its way through the state legislature. Over continuing objection, it passed out of the Senate this morning by a vote of 29-2 and is now in the House for a full vote “before heading to the desk of Gov. Sarah Sanders,” thv11.Com confidently reports.
Whatever the measure of victory, Arkansans – both Democrat and Republican, right leaning and left leaning – fended off a catastrophic, but almost comically disorganized, assault on their state Freedom of Information Act. They did so by unified opposition to the deprivation of their statutory rights and sheer force of will.
“It is this level of media and public outrage,” I wrote earlier this week, “this organized and immediate call to action that is the last, best hope” for stemming the anti-transparency agenda in Kentucky.
Will Sanders and her legislative minions return with renewed attacks on Arkansas’s public records law? Perhaps.
Will anything quench the Kentucky supermajority’s unslakable thirst to control information and knowledge and thus keep constituents in the dark? Perhaps not.
But what better example of democracy in action can we imagine than the example set by Arkansans in a work week that culminates on Friday, September 15 – Democracy Day.