Upholding values
In the delicate architecture of democracy, transparency stands as the singular structure safeguarding the covenant between the governed and those in authority. Whoops, I mean “government disclosure” not “transparency,” because the state attorney general says “transparency” is “partisan.”
He claims “transparency … has an obvious positive ring to it,” while “government disclosure” does not. But it seems obvious to me that “government disclosure” rings just as positive as “transparency,” because, well, they’re both exactly the same really good idea.
Another columnist at this fine paper recently described the members of the citizen-driven populist group dedicated to protecting government disclosure as “strange bedfellows.” Indeed! He wrote: “There is a left-of-center attorney [David Couch], [who is a] public initiative whiz and mild disrupter, a veteran legislation drafter [Jennifer Waymack Standerfer], a Democratic state senator [Clarke Tucker], a former Republican legislator turned independent [Nate Bell], a media association executive [Ashley Kemp Wimberley], and a law professor and fiery hide-peeling columnist coming from a kind of libertarian outsider perspective and a sweetheart in private [me].”
Our group traversed the state and drafted two ballot proposals reflecting citizens’ concerns. The proposals will: 1. ensure the people approve future changes to the Freedom of Information Act; 2. provide an overdue definition of “public meetings”; 3. safeguard citizens’ right to attorney’s fees in successful FOIA cases against government; 4. create a direct penalty for government officials knowingly violating the FOIA; 5. continue to protect public officials and their children, while making former security records available; and
6. create a commission to resolve disclosure disputes for citizens who want to avoid the expense of going to court.
When we submitted the first version of the people’s proposed constitutional amendment to the attorney general, in addition to proclaiming the term “transparency” as “partisan,” he asserted: “[Y]our proposed text twice uses the phrase ‘in a case concerning government transparency.’ Under current Arkansas law, there is no such cause of action. Rather, citizens have rights under the Freedom of Information … [which] include the right to timely receive or inspect copies of nonexempt public records or to attend public meetings. No provision of the FOIA uses the term ‘government transparency.’ Since it is unclear from the face of your proposed text what you have in mind, I cannot ensure that this version of your proposed ballot title properly summarizes your proposed text …”
But before we submitted that proposed constitutional amendment, AG Tim Griffin wrote: “Those who oppose the [attorney-general generated FOIA] working group have trotted out the same tired talking points used to attack FOIA legislation: Only a select few really care about government integrity and transparency.”
So, should we also be confused about what Tim Griffin meant when he talked about “government transparency” in the context of FOIA legislation?
It took us three tries to get our government-disclosure amendment past Griffin—approval occurring just after we filed suit—and four for the statute. The next step is collecting more than 90,000 signatures for the proposed amendment and more than 70,000 signatures for the proposed statute to get both on the November ballot. Please look for those signature gatherers at the supermarket!
Enough of my views, though. Here’s what others think:
▪ Republican state Senator Bryan King said: “I have been involved in Republican politics for over 30 years. My family history goes back to Governor Rockefeller and Congressman Hammerschmidt … The basic right of the citizens to know what their government does and to challenge [that] … were once commandments for essential good government. Our founding fathers wisely knew that, as well. What is happening today with efforts denying those rights is alarming to the point of being a crisis.”
▪ FOIA and First Amendment attorney John Tull stated: “I will leave to David [Couch] to talk about statutory and constitutional overreach. This [process of getting approval from the attorney general] felt more adversarial than it needed to be. This is a power reserved for the people, and our bar is small and we have all worked together. Yet we received condescending responses [from the attorney general] rather than participating in a collaborative process, which it should be. The role [of the attorney general] is to make certain the people are not tricked or misled, not to be nitpicky over word choices. Finding the term ‘transparency’ to be ‘unclear’ and ‘partisan’ was shockingly disappointing.”
▪ Attorney David Couch remarked: “The duties of the Attorney General in the ballot-title review process are prescribed by statute. The Attorney General has no authority to do anything but approve or substitute a ballot title other than in those very limited circumstances where the ballot title or the measure’s text are designed to be misleading. However, the Attorney General has exploited his limited-statutory obligation in order to force the people to rewrite the text of their proposals the way he wants. The Attorney General is not the person who decides what the language or words of a proposed act or amendment ultimately mean. That responsibility belongs to the courts once the law is approved by voters. The Attorney General believes that he is the Omnipotent Wizard of Arkansas Initiatives, but Arkansans can see behind that curtain.”
▪ Former bill drafting attorney for the Legislature Jennifer Waymack Standerfer wrote this about the attorney general’s efforts: “There’s a difference between making an argument and making a sound argument. I wish all lawyers understood the difference.”
The “Arkansas Government Disclosure Amendment” and the “Arkansas Government Disclosure Act” are the people’s modern-day Declaration of Independence. The public’s right to government disclosure is non-negotiable, securing power where it rightfully belongs—in the hands of an informed and empowered citizenry.
This is your right to know.