LITTLE ROCK (AP) - The Arkansas law to keep the public's business in the public eye turned 40 this year and was met with new challenges from the state Legislature - as it has regularly since the Sept. 11 terrorist attacks.
At least 30 bills on open government and public records were filed by the March 5 deadline in the current legislative session, according to a preliminary count by the Arkansas Press Association.
There were 30 bills filed in 2005 and 15 in 2003, the first regular session after the terrorist attacks. The Arkansas Legislature filed only five challenges to the FOI in its 2001 session before 9/11.
To those who monitor the Arkansas Freedom of Information Act, activity so far this year has neither weakened nor strengthened the law.
"In the end, we're probably about just where we were two years ago," says FOI expert Richard Peltz, a law professor at the University of Arkansas at Little Rock. "I would much prefer to see a trend a little more in favor of public access. We're not moving toward or away from that right now."
Arkansas' FOI law, adopted Feb. 14, 1967, is one of the oldest in the country. Like laws in other states and the national law, it is based on the principle that open government is an essential part of democracy. In practice, though, citizens and public officials often become adversaries.
In a Fort Smith case that figured into legislation this session, military retiree David Harris challenged officials when the city administrator secured approval from board members by telephone to buy property at auction to realign a truck route. Harris, who attends city meetings as a pastime, found out about the purchase from a friend.
When the board voted the following week to approve the purchase, Harris stood up.
"I said, 'I think you've violated the FOI,"' Harris recalls.
City officials didn't agree; they said they were trying to save the city money by the auction purchase. But that didn't satisfy Harris, who sought help from the local prosecutor then filed an FOI lawsuit when the prosecutor decided not to pursue criminal charges.
Harris ultimately won the civil suit but at a huge price when the Arkansas Supreme Court last year wouldn't order a $10,000 judgment for Harris' attorneys fees.
"There was a kind of arrogance that the city government could do no wrong and could pretty much do what they wanted to," Harris says. "I mean I was mad. ... I was willing to go as far and as much as it would cost me."
Fort Smith City Administrator Randy Reed wasn't in office when the dispute between Harris and the city arose, but Reed has worked in public service for more than 30 years and says he respects the FOI law.
Like other taxpayers, Reed says, he wants to know how public officials use public funds. The problem occurs when city officials lose a chance to further the public interest when certain information is made public, he says.
"I'm very aware of all the requirements of the FOI and I believe in it," says Reed, who was the city's police chief before becoming administrator. "(But) if we have to put our cards on the table, there's not much need playing our cards."
Reeds says that while the courts found the city violated the FOI law, "I don't think anybody thinks the law is a bad law."
Peltz says not many people or even small media outlets have the resources to pursue FOI complaints and prosecutors rarely seek a criminal conviction, punishable by a maximum 30 days in jail and a $200 fine.
What the Arkansas law needs, he says, are provisions that establish an independent enforcement office, as the state of Virginia has, and make the process more citizen friendly.
"We don't have an enforcement mechanism for the little guy. Joe Public is kind of left out of the process," Peltz says.
Last month, Peltz spoke at an Arkansas House committee hearing for legislation that would require the courts to award attorney's fees and other litigation expenses to individuals like Harris who successfully sue under the FOI. The bill also would have eliminated state immunity from lawsuits in FOI cases. The measure failed in committee.
Peltz says state and local officials generally seem overly cautious in releasing public information and too quick to overlook the principles of open government.
"You do get a little bit, I think, local arrogance in record keeping. There are those individuals who have fiefdoms and those people don't tend to accede easily to state law mandates," Peltz says.
Attorney General Dustin McDaniel, who took office this year, says he's a strong supporter of the FOI law, and refers to his father's previous role as a special justice on the Arkansas Supreme Court in writing an opinion that strengthened the public's right to know.
McDaniel says his office spokesman and staff lawyers will continue the practice of former attorneys general to answer FOI questions from the public and press, in addition to his mandate to issue opinions on specific requests regarding public access.
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