Gov. Sarah Huckabee Sanders proposes carve-out of Arkansas public records law during tax cut session

Sep 8, 2023, 2:40 PM

LITTLE ROCK, Ark. (AP) — Arkansas Gov. Sarah Huckabee Sanders on Friday proposed shielding a broad range of records about her administration, travel and security from public release as she called for a special legislative session next week focusing on additional tax cuts.

The Republican governor proposed the new exemptions to the state’s Freedom of Information Act as the Arkansas State Police is being sued by an attorney and blogger who’s accused the agency of illegally withholding records about Sanders’ travel and security.

FOIA experts said the changes would severely weaken the 1967 law — signed by the state’s first Republican governor since Reconstruction — that protects the public’s access to government meetings and records.

Sanders, who took office in January, portrayed the changes as a way to modernize the law and make government more efficient.

“Arkansas has some of the most transparent FOIA laws in the country, and these reforms will do nothing to change that,” Sanders at a news conference at the state Capitol. “But some are weaponizing FOIA and taking advantage of our laws to hamper state government, and enrich themselves.”

The proposed changes would prevent the state from releasing records “revealing the deliberative process of state agencies, boards, or commissions,” including recommendations, memos and advisory opinions. Sanders said the language mirrors an exemption used at the federal level.

Robert Steinbuch, a law professor at the University of Arkansas at Little Rock’s William H. Bowen School of Law and an expert on the state FOIA, said the move would “effectively remove transparency from state government operations.”

“I’m a conservative and conservatives claim to have fidelity to limited government,” Steinbuch said. “The only way to have limited government is through transparency and this will eliminate transparency for a host of decisions made by executive agencies.”

The proposal would also exempt records “that reflect the planning or provision of security services provided” to Sanders, as well as other constitutional officers and members of the Legislature. The proposal would instead require state police to release a quarterly report to the Legislature with the aggregate expenses for the governor’s security detail. If enacted, the security exemptions would be retroactive and go back to records from January 2022.

Sanders cited her experiences facing threats going back to her time as press secretary for former President Donald Trump and more recent ones, including an Oklahoma man who pleaded guilty last month to threatening to kill her and other Republican politicians.

“Our current FOIA laws put me and my kids at risk, so we will update sections of the law so that the sources and methods Arkansas State Police uses to protect me and my family outside the governor’s mansion are not subject to disclosure,” she said.

The proposal follows a law enacted in Florida to block the release of travel records of Gov. Ron DeSantis, who is now seeking the GOP presidential nomination. Arkansas legislative leaders said they expect the changes to have majority support in both chambers of the majority-Republican Legislature.

Other parts of the measure would create an attorney-client privilege exemption under FOIA. It would also change the standard for courts awarding attorneys’ fees to plaintiffs in FOIA lawsuits, which critics said would deter citizens from filing lawsuits to seek records being withheld.

John Tull, an attorney and counsel for the Arkansas Press Association, said the proposal, if enacted, “puts a big hole in our FOIA.”

Other efforts to scale back the state’s transparency law were defeated in the legislative session earlier this year following concerns they would weaken the public’s access to public records and meetings. Attorney General Tim Griffin, a Republican, formed a working group in June to look at possible changes to the law to take up in the 2025 regular legislative session.

Democratic Sen. Clarke Tucker, who was named to that group, said there may be a fair argument that the security exemptions are time-sensitive but didn’t see the need to push now for other exemptions in a special session.

“All of the other proposed changes to FOIA, which are huge, I don’t see the argument that those are time-sensitive and can’t wait until January 2025,” Tucker said

The legislative session that begins on Monday will also focus on Sanders’ call to cut the state’s top individual income tax rate from 4.7% to 4.4%, a reduction that’s estimated to cost the state $150 million a year. Sanders is proposing cutting the state’s top corporate income tax rate from 5.1% to 4.8%, estimated to cost $35 million.

Sanders also called for a one-time nonrefundable tax credit to taxpayers making less than $90,000 a year of up to $150 per individual taxpayer and up to $300 for married spouses filing jointly. The credit will cost the state about $156 million.

The tax cut proposals come after the state ended the fiscal year with a $1.1 billion surplus, its second-largest ever. Sander proposed setting aside $710 million in surplus funds for a reserve fund “to keep responsibly phasing out the income tax entirely.”

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Gov. Sarah Huckabee Sanders proposes carve-out of Arkansas public records law during tax cut session