Open letter to the Arkansas Legislature

Esteemed State Senators and Representatives,

We are addressing you in reference to Senate Bill 373.

Entitled “An Act To Exempt Attorney-client Communications and Attorney Work Product From The Freedom of Information Act of 1967,” the bill passed the Senate 30-0 in February and went to the House, but the House has since sent the bill back to the Senate and that body is expected to vote again on the legislation in the next few days.

We are not sure our lawmakers are aware of the language of this bill, but it would drive a wedge between our governments, both state and local, and the public they claim to serve.

In essence, the bill exempts from the Freedom of Information Act public records that may be at issue in pending or threatened litigation.

According to the bill, “‘Threatened litigation” means awareness by a governmental entity, through an actual written or verbal communication from a potential claimant, or the claimant’s representative, that the claimant will likely seek legal relief in a court, tribunal, or administrative agency against the governmental entity or its officials.”

SB 373 could shatter public trust and allow governments and government related agencies to claim attorney client privilege in regard to information that would normally and necessarily be accessible to citizens and taxpayers.

It certainly would be viewed as ushering in a return to the days of “Good ‘Ole Boy” government, where decisions are made in back rooms away from the public and examination. It would be a huge step backwards in a state that over the past 50 years has striven to uphold the mantle of government transparency.

Two supporters of SB 373 have been the University of Arkansas and Arkansas State University, and according to the Arkansas Democrat-Gazette, attorneys and other officials for the schools wrote and sent proposed language for SB 373 to lawmakers.

The bill could allow any bureaucrat in the state — in college or elsewhere in government — to wave a piece of paper under a lawyer’s nose, then hide the content of paper from the public. “Attorney-client privilege!”

The university officials proposed language that would exempt records from We the People if the records were involved in future or “threatened” lawsuits.

University officials, according to reports, say they have a problem with opposing attorneys in real lawsuits gaining strategic advantage by filing FOIA requests for notes and papers.

Can you imagine if something happened in our state like the child abuse scandal at Penn State several years ago? That case found assistant football coach Jerry Sandusky guilty of more than a decade of abuse. The university’s president and athletic directer were charged with perjury and obstruction of justice. Longtime coach Joe Paterno lost his job over the scandal.

Now, just imagine what might bave been covered up if Pennsylvania had a version of SB 373 in place.

John Tull, a First Amendment lawyer in Little Rock, says the law already allows a court to protect those documents. Or as he put it: “I am unaware of any court which has refused a request for such a protective order.”

Tom Larimer, executive director of the Arkansas’ own Press Association, was more succinct.

“Anybody can say, ‘I’m going to sue.’ That would apply to all of us. Anybody can be sued for anything at any time,” Larimer said.

Another expert on the state’s FOIA, one professor Robert Steinbuch, said SB 373 is “so encompassing, there will be some wrongdoing that is going to be covered up” eventually. In other states, the professor notes, citizens have asked for records — such as, say, records of crimes in schools — but because of their excessive exemptions in their own state’s FOIA laws, citizens have been turned away.

Which is why SB 373 is so dangerous. Its sponsors in the Legislature might not intend much harm, but as soon as this thing is on the books, we can see much, if not most, public records being off-limits to the public.

Many are of the opinion that it is simply an attempt to hide unsavory and possibly illegal activity on the part of government officials or staff.

Should SB 373 come to the Senate floor for a vote, we certainly hope Sen. Trent Garner will cast a vote against it.

All of the state media will have their eyes on the outcome of this bill.

Sen. Garner may be reached at [email protected] or by phone at 870-818-9219.

— El Dorado News-Times

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