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Arkansas Shouldn’t Use a Hastily-Called Special Session To Make FOIA Less Functional

Arkansas residents right now are facing a sudden and serious attempt to block their access to important government information. 

In a special session of the state legislature, announced Friday by Gov. Sarah Sanders and convened Monday morning, lawmakers are expected to discuss making major amendments to the Arkansas Freedom of Information Act (FOIA), which has guaranteed the public’s right to government information since 1967.

The proposed changes will do a number of things that will reduce transparency in the state. These new limits for requesters include:

  • An expansion of the category of non-disclosable materials to include almost all “security”-related data and spending information related to the governor and other officials. This would mean the public would no longer be able to access details on the cost to provide security to the governor and her companions on trips outside of the governor’s mansion, including such costs incurred by agencies like the Arkansas State Police. 
  • The addition of a version of the federal “deliberative process exemption” (also known federally as the b5 exemption) to the state’s FOI law.  Some agencies in the federal government have applied this exemption extremely broadly and used it to exempt from disclosure materials that are considered “drafts,” even when they are effectively the final written policy on some issues. 
  • Raising the bar for being awarded attorney’s fees, also known as “fee shifting.” Currently,  where it’s determined that the FOIA denial was improper, FOIA requesters “shall” receive attorney’s fees; the new legislation proposes that compensation now be at the court’s discretion. The ability to recoup costs associated with fighting an agency’s unwarranted denial is a very important element of making FOIA accessible. Regular citizens and journalists who would normally not be able to afford the cost of fig

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