Commentary

Rare Win For The Public's Right To Know

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By Brenda Blagg

The public’s right to know posted a rare win in Arkansas last week.
Fittingly, the action came during Sunshine Week, which began Sunday and is being marked nationwide by advocates of open government.
An all-too-obvious erosion of transparency in government nationwide prompted creation of the week-long annual event several years ago.
Advocates of freedom of information — defenders all of the First Amendment — wanted the public to realize what was being lost as government at all levels shielded more and more from public view.
So, once a year, newspapers and other media outlets, as well as supporting organizations, focus attention on this fundamental right of people in a democracy.
In this state, our citizens’ right to know is spelled out in the Arkansas Freedom of Information Act, first passed in 1967. All these years later, although amended frequently, the Arkansas FOI Act still stands as one of the nation’s best open-records, open-meetings laws.
It is supposed to give citizens a window into their government. But government from time to time slams that window shut, refusing documents or access to meetings that the FOI law supposedly opens.
In the more egregious cases, a citizen denied access may sue the government to get relief, although the relief may not be much more than the satisfaction of knowing that the citizen was right and the government wrong.
An amendment to the FOI Act passed last week by the state Senate and previously by the House of Representatives could give citizens who have been wronged by state or local government something more than satisfaction when the citizen takes the government to court and wins.
The governor should sign House Bill 1326 into law.
State Rep. Lindsley Smith, D-Fayetteville, sponsored the bill that ought to improve the chance that a citizen proven right in court will have the out-of-pocket costs of the litigation covered.
Just the possibility that more citizens might be able to sue should improve government compliance with the FOI Act.
The Arkansas Freedom of Information Act has had a provision to allow a prevailing plaintiff to recover attorney’s fees from the losing government, but the provision was flawed. A case out of Fort Smith proved as much.
The city plainly violated the FOI Act some years back, but the courts refused to award the winning plaintiff attorney’s fees or costs. The citizen was out thousands of dollars to force the city’s compliance and couldn’t recover any of it. That’s just wrong.
This recent amendment to the FOI Act would switch jurisdiction from the courts to the Arkansas State Claims Commission for recovery of attorney’s fees and other expenses in FOI litigation. The courts will still decide whether the law was violated but recovery of costs will come as a claim against the state.
There was one other FOI victory, too, this year as lawmakers passed what became Act 184 of 2009, requiring a statutory cross-reference for all new exemptions to the FOI Act.
That may not sound like much of an improvement; but the legislation, sponsored by Rep. Dan Greenberg, R-Little Rock, will at least require lawmakers to be up front about altering public access to government information.
So, both Smith and Greenberg scored victories for the public, albeit small ones in a legislative session that, like so many sessions past, has seen far more efforts to whittle away at what the people may know about their government.
Save for another day the recitation of this year’s losses to the public’s right to know. Instead, savor these wins that help to keep government in the sunshine in Arkansas.

Brenda Blagg is regional editor of The Morning News and Arkansas coordinator for Sunshine Week. Address comments or queries to Brenda Blagg, 203 N. College Ave., Fayetteville, AR 72701, or e-mail to bblagg@nwaonline.net.

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