Democracy in action

UPDATE: A few hours after the hearing described below, the bill’s sponsor filed a new bill that stripped out all of the provisions except for the ones regarding the governor’s security. In a hearing on Sept. 13, several speakers still questioned the breadth — not concept — of the bill, but most supported it and the bill passed the committee unanimously.

Grab some coffee because this is a looooong one.

This past Friday, the governor of Arkansas called for a special session of the state legislature, saying that "an extraordinary occasion” had arisennecessitating immediate action: Tax cuts to counter “Bidenomics,” a ban COVID vaccine mandates for public employees and revisions to the state’s FOIA.

Arkansas has a reputation for having both a good FOIA law and good judges who are willing to find violations and impose penalties.

I would say, after watching all five hours of the hearing today on the FOIA proposal that Arkansas should also have a reputation for super-engaged citizens who get FOIA and who are not afraid to mix it up with their elected officials to get answers.

First, the basics. The bill they talked about today was a different one from that was introduced yesterday. Thankfully, some really bad provisions were eliminated. But here’s what was left:

1. An exemption for records on the “planning or provision” of security services for the governor, lieutenant governor, AG, members of the legislature, judges and a few other state officers.

2. An exemption for the communications between the governor and cabinet secretaries.

3. An exemption for state-government attorney records for litigation.

4. An exemption for records sent/received by state officers and employees that would fall under the attorney-client privilege (this was called the “cc your lawyer” exemption).

5. The elimination of automatic attorney fees for FOIA plaintiffs who “substantially prevail” in FOIA suits; replaced by a provision that attorney fees may be awarded, but only if plaintiffs substantially prevail and they prove the government’s position was “arbitrary or in bad faith.”

6. Retroactive application of #1 to June 1, 2022.

(And can I just pause here to note that much of what they want to exempt is already exempt in Virginia. The problem is that we already exempt so-so-so much that when a massive exemption like the criminal investigation bill of 2022 comes through our legislature, it’s hardly noticeable.)

The hearing

To start things off, the bill’s sponsor, Sen. Bart Hester said the bill was needed mainly to (a) protect the governor and her family, given the threats that have been made against her going back to her days in the Trump administration1, and (b) to modernize the 1967 law (which they oddly kept referring to as if it hadn’t been amended at all in over 50 years).

Hester (and later, others) repeatedly said that all information about the governor’s security needed to be shielded because bad actors could detect a pattern and then do bad things.

When he was done, members of the committee asked him and an attorney from the governor’s office questions. They were pretty much what you’d expect in a legislative committee hearing except for when Sen. Bryan Kingstarted a bit of a rant against the bill and Hester retorted, “Was there a question in there?”

So, that’s a lot of setup to get to the meat of the hearing. When the committee questions were done, the chair of the committee, Sen. Blake Johnson, called for public comment. If I got it right, there were 28 speakers. They had to sign up in advance, and Johnson called them in order — some were grouped together, but others individually — and they took a seat at a long table facing the committee. There was no time limit. Though Johnson interrupted occasionally to make a point or to get speakers back on topic (and he did ask security to escort one man out), he otherwise pretty much let speakers have their full say.

THIS IS SO DIFFERENT FROM VIRGINIA. I was floored. There were plenty of niceties and platitudes — thank you for the opportunity, you all did good by removing some of the original provisions — but none of the formality you see at the Virginia General Assembly, and no time limits as have become de rigeur in most committee meetings. This was especially noticeable when the speakers were asked questions by committee members and there would be pointed back-and-forths. Speakers would often talk over the committee members and vice versa and no one seemed to get hot-under-the-collar about it. The only time it did was when one guy — the one escorted out — called Johnson a bully.

Citizens speak

Some speakers talked for less than a minute or two. Others spoke for 10 or 15 minutes and answered extensive questions. The vast majority of the speakers were against the bill. The only ones who spoke in favor were cabinet secretaries and government contractors.

Unsurprisingly, members of the media spoke against the bill. There were five or six of those. Several lawyers spoke against the bill, maybe five or six of those, too. But the majority of people who spoke were citizens, just plain citizens, though there was nothing plain about their comments. These people knew their stuff! And the way they defended their rights under FOIA was inspirational.

And something else about them. Most of the citizen-speakers identified themselves as Republicans. The GOP has a supermajority in the legislature and the governor’s a Republican. These citizens made it clear that as Republicans they disagreed with much if not all of the bill, and certainly the rushed process (e.g., what makes the cc-your-attorney provision worthy of an extraordinary session?). They said it went against the state party platform.

There were Democrats testifying, too, but all — R and D alike — all agreed they were in agreement in their opposition to this bill:

"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."

A Republican activist said citizens of all political parties oppose the bill: “The only people in favor of this bill are bureaucrats.”

A college student quoted from “Rich Men North of Richmond” and reminded members that even if this governor has good intentions, the legislation would apply to all future governors who may not.

A law professor said conservatives like him believe in tort reform and the concept of “loser pays,” and — before being told to stop talking about “court crap” by the chair — he explained that this proposal requires the plaintiff to prove bad faith before the loser pays.

A lawyer active in Republican politics said the bill was an assault on the republic. Another Republican activist said she was saddened that the legislators seem to think they — the citizens — are crazies.

A citizen who described himself as someone who speaks plain English, “but with a hillbilly accent” and a background in security, refuted the notion that past security detail would predict future security details.

And one guy lamented, “Y’all, I’m only 30. Can you please not make a cynic out of me?”

As for the guy who got thrown out for calling the chair a bully, here’s what he said right before that.

Every exemption you add takes away my rights. The right to information that I used to have.

Speaker after speaker. A fact not lost on one of the last speakers who told the committee that despite their insistence that this bill would help with government efficiency that would benefit citizens, “We, the citizens, are telling you we don’t want your product.”

I don’t know what will happen. I don’t know Arkansas process. But for reals: these citizen speakers — and, really, all speakers and even all of the committee members — were serious and solemn and informed and engaged and, for the most part, respectful. After watching them for five hours, I not only deserve the Iron Razorback-side award, I’m ready to call the hogs, y’all!