On Friday, September 8, 2023, Governor Sarah Sanders announced that a would begin at the Arkansas Capitol on Monday, September 11. In her announcement of the special session, the Governor hinted at potential amendments to the Arkansas Freedom of Information Act (AFOIA). She specifically mentioned a desire to protect “internal deliberations within the executive branch” from public scrutiny, citing concerns for both her personal safety and that of her family. These concerns stemmed from that arose during her gubernatorial campaign and afterwards.

Following the Governor’s announcement, and were filed in the Arkansas Legislature. Both bills had several objectives, including the limitation of public access to records related to the security of the executive branch; this encompasses communications, processes, and travel arrangements, retroactively to January 2022.Ģż

The bills also sought to restrict access to any documents, communications, or other forms of deliberative processes of Arkansas state agencies, boards, or commissions, including records associated with contract bids and discussions, attorney-client privilege, and legal strategy, especially during periods when the state is facing legal action.

From a cursory read of both bills, it was clear that there was substantial reliance on , a carve-out to the Federal-level FOIA that allows the federal government to withhold documents and records related to internal deliberations that occur before any final administrative decision is made.Ģż

It is essential for Arkansas residents to understand that Exemption 5 in the Federal FOIA has been cited as the reason for denying the release of federal interagency deliberative documents on more than between FY 2008 and FY 2022. It is this same exemption that Governor Sanders proposed to narrow the scope of AFOIA.Ģż

At the start of the session on Monday, September 11, there was growing concern that those two bills were undermining the AFOIA. As of today, Tuesday, September 12, two new bills, and , have been introduced.Ģż

A quick review of these two new bills shows that the “deliberative exemption privilege,” has been removed, which is a positive development. However, some provisions of the two new bills, like the one involving “Records reflecting communications between the Governor or his or her staff and the secretary of a cabinet-level department,” will still be exempt.Ģż

Moreover, Section 4, Paragraph (30), requires a credible threat of litigation for attorney-client exemption, while Section 4, Paragraph (31), states that all “502(b)” material is exempt even without a threat of litigation.Ģż

Invariably, these new bills may still pose challenges for the public in accessing certain information.

Without doubt and without reservation, Arkansans should be able to protect themselves and their families from physical harm and deprivation. However, the language proposed within the amendment to the AFOIA law would create unintended negative consequences. Some of these could include shielding the conduct of corrupt or inefficient government actors from public view and hiding embarrassing or otherwise unsightly internal deliberations about policy priorities. It is important to remember that any proposed legislation will become permanent and needs to be carefully considered and vetted to assuage any concerns about unintended consequences moving forward.

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What should residents know about the current Arkansas Freedom of Information Act?

The current AFOIA has been praised by many, including Eliza Gaines, publisher of WEHCO Media Inc., the parent company of the Arkansas Democrat-Gazette. She said that AFOIA ā€œā€ Likewise, Assistant Senate President Pro Tempore, Clarke Tucker [D-Little Rock], praised Arkansasā€™s FOIA as ā€œ.ā€ Also, Arkansas Attorney General Tim Griffin echoed this sentiment on the Arkansas , where itā€™s noted that the AFOIA is considered one of the most comprehensive and robust frameworks for open-records and open-meetings laws in the United States.

What are the key elements that contribute to the praise of the AFOIA?

1. Presumption of Open Records: This means that unless specific exemptions apply, all government records are considered open to the public, thereby promoting transparency.

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1. Presumption of Open Meetings: This also means that unless specific exemptions apply, AFOIA provides for transparency in government proceedings by requiring that meetings conducted by government bodies touching on public business are open to the public, allowing citizens to observe and participate in the democratic process.

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These aspects of the current AFOIA are its notable strengths. Hence, consistent court rulings in Arkansas have reinforced the public’s right to access government records and public meetings, contributing to a culture of transparency.

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How is Arkansas performing in terms of transparency at both the state and local levels?

Despite the past praise from members of the Arkansas press and the state legislature, there is still much work to be done to achieve government transparency in practice.

In the Sunshine Reviewā€™sĢż 2013 Transparency Report Card titled “,” Kristin McMurray wrote that a review was conducted to evaluate the online transparency of various levels of government across the United States. The findings showed that Arkansas received an overall grade of C- in online transparency, with the state government earning the best score of any level of government (B), while its cities, school districts, and county governments received grades of C, C-, and F, respectively. Notably, Arkansas’s counties were ranked as the least transparent among all the counties in the country at the time.Ģż

Moving forward to 2015, the Center for Public Integrity produced the , which ranked Arkansas as the 32nd-most transparent state in the nation. This report utilized a mixed-method cross-disciplinary approach to measure the extent to which each state fulfilled its commitment to providing transparent and accountable governance to its residents. States were evaluated across various categories of transparency and accountability, including the strength of their public records laws such as FOIA. In this regard, Arkansas in State Integrity Investigation, with one of the contributing factors being our open records law. In the report, the authors noted that while Arkansas did offer robust overall protections for disclosing records, it also had various exceptions and gaps that obstructed the release of certain records.

The report highlighted that some states may have robust general protections for record release but simultaneously, countless exemptions and loopholes that impede such record releases, thereby impacting their overall ranking.

Although there haven’t been any updated editions of these reports since 2013 and 2015, they continue to provide a valuable foundation for evaluating Arkansas’s present transparency performance.

Ģż It’s also crucial to acknowledge that substantial improvements have been made since 2015. Regarding state-level transparency, AFOIA laws have been periodically updated and revised to address evolving challenges. For instance, during the past legislative session, the Arkansas General Assembly enacted . It mandates that public records custodians must respond to FOIA requests in time if no responsive records exist or if exemptions apply, and they must identify the relevant exemptions. Additionally, the Act allows that responses could be delivered via email.

Also, Arkansas maintains a designed to offer easy access to government spending data, contracts, and other essential information, which should improve public access to government activities. While the stateā€™s transparency website has not seen extensive use, it still reflects a commitment to keeping the Sunshine Laws relevant.Ģż

In the “,” authors Rachel J. Cross, Michelle Surka, and Scott Welder categorized state transparency websites. Arkansas was placed in the second tier, known as “Advancing states.” It earned this ranking because its transparency website provides easy access to state spending, which can be downloaded and searched by recipient, keyword, and agency. The ā€œadvancing statesā€ ranking is attributed to states that have less spending data available to the public than ā€œleading states,ā€ which hold the first place ranking in the Report.Ģż

When compared to its neighboring states, Arkansas’s transparency website outperformed those of Missouri, Mississippi, Tennessee, and Oklahoma. Each of those neighboring states received either a D or a D- for their promotion of web-based fiscal transparency. Among the neighboring states, only Louisiana received a higher grade (A-) for its fiscal transparency website, surpassing Arkansas’s B- grade.

At the local government level, the Arkansas Center for Research in Economics (ACRE) conducts research to assess local government web transparency and publishes the Access Arkansas: County and City Web Transparency Report. This report focuses on Arkansas’s 75 counties and 112 first-class cities (cities that at the last federal census have a population exceeding 2,500 people), ranking them based on fiscal, administrative, and political web transparency.

Key findings from the Report related to AFOIA at the local government level reveal that the situation is bleak. Only a few counties (10 out of 75) and first-class cities (23 out of 112) publish online information on how residents can make FOIA requests. Similarly, a significant number of counties (35 out of 75) and first-class cities (35 out of 112) lack online accessibility for procurement information, such as government contract bids and winners.Ģż

On political transparency, while officials’ names (97%), office phone numbers (97%), and email addresses (91%) are commonly available, there’s a glaring absence (0%) of financial disclosure and conflict of interest statements available online from counties.

Also, regarding information on meetings like quorum courts which is vital for public participation and scrutiny, not so many counties (only 33 out of 75) and first-class cities (just 51 out of 112) adequately publish such information. Regarding quorum court records, only 44 percent publish times and locations of public meetings, while only 12 percent of Arkansas counties publish archived videos. While we at ACRE do not know the intent of this discrepancy, it is reasonable to say that once a meeting of the Quorum Court adjourns, the conversation and decisions in that court will be lost to history in the absence of such items being made public.Ģż

At the state transparency level, ACRE has conducted limited research on AFOIA. This is because AFOIA laws have been periodically updated and revised to address evolving challenges. As a result, ACRE’s focus over the years has been on researching the expansion of AFOIA to include web transparency at the state level. However, Governor Sanders’ proposed amendments would significantly roll back the progress made in the area of AFOIA concerning state government records. This move could set a precedent for local governments to follow, undermining ongoing local transparency efforts.

What would be the impact of adopting the Governorā€™s proposed amendments to AFOIA? We will address that in more detail in Part 2 of this blog post, coming soon.

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Dr.Joyce Ajayi and Mr. Joseph Johns are policy analysts at the Arkansas Center for Research in Economics (ACRE) at the University of Central Arkansas in Conway. The views expressed are those of the authors and do not necessarily reflect those of the University of Central Arkansas.

By Caleb Taylor

Who made the Arkansas Center for Research in Economicsā€™sĢż ā€˜nice listā€™ when it comes to transparency in 2019?

You can find out through the just-released second annual Transparency Index from the Arkansas Center for Research in Economics, co-authored by ACRE Policy Analysts Dr. Mavuto Kalulu and Joyce Ajayi.

In 2018 four counties published at least 50 percent of the important public information included in our index. In 2019 eight counties do.

The indexā€™s authors begin the report by noting some improvement on overall transparency scores since the previous report.

This edition also highlights the counties that have improved the most since last year. Our assessment shows some improvement in overall transparency. For Arkansas counties as a whole, we find that, as in 2018, political transparency is the best, followed by fiscal then administrative transparency. Fiscal transparency improved the most, followed by political then administrative transparency. The current index shows that, on average, Arkansas counties are publishing about 21 percent of the important information included in our index compared to about 15 percent in 2018.ā€

Thatā€™s an average of over one third since just last year ā€” and thatā€™s very encouraging.

The index ranks all Arkansas counties by how much financial, political and administrative information their websites contain.

According to the report:

Fiscal transparency is the disclosure of how governments spend tax dollars. Administrative transparency relates to the openness of government activities and processes, while political transparency relates to the disclosure of information about elected officials and openness of elected bodies such as quorum courts ā€” the legislative body of county governments.ā€

Top Performers

In the 2018 report, Washington County received the highest overall transparency score, with Pulaski, Benton, Garland and Baxter rounding out the top five. In 2019, Washington County once again garnered the highest transparency score. Benton, Garland and Pulaski counties once again remained in the top five while Sebastian County improved from seventh in 2018 to fourth in 2019.

Most-Improved

Also of interest are the counties that have improved the most since the 2018 index.Ģż

From the report:

Jefferson County improved the most, by 0.357, which is equivalent to adding close to 36 percent of the important public information included in the index. In terms of ranking, Jefferson County moved from ranking 50th in the state in 2018 to 12th in 2019. One reason for this improvement is that Jefferson County now has its own stand-alone website. Previously, it published only a few pieces of information on the Arkansas.gov platform. Other counties worthy of mention are Cross and Ashley, which improved by 0.330 and 0.323 points, respectively. This improvement made Cross County jump from 28th in 2018 to 11th in 2019; Ashley leaped from 52nd to 18th. Three counties (Sebastian, Saline, and Faulkner) that were in the top 10 in 2018 are among the top 10 most-improved counties in overall transparency, showing that even when counties have relatively high rankings, they can make important improvements.ā€

Legislative Change

The inaugural index was produced by ACRE Policy Analyst Dr. Mavuto Kalulu, Program Coordinator Terra Aquia and ACRE Policy Analyst Joyce Ajayi.

Kalulu, Ajayi and Aquia in the 2018 edition suggested state legislators consider requiring county governments to post their budgets online by amending state law. , passed into law in March, 2019 does just that. The law requires all Arkansas counties to post their annual budget on a website owned or maintained by the county, the state, or the Association of Arkansas Counties beginning on January 1, 2020. Counties are already required to publish such information in their local newspaper. Kalulu spoke in favor of the changes before the Arkansas House City, County and Local Affairs Committee on March 7.

For more of our research on transparency, go here.

By Caleb Taylor

ACRE Policy Analyst Dr. Mavuto Kalulu says no in an op-ed entitled ā€œ,ā€ published in the Arkansas Democrat-Gazette on September 20th.

A proposed casino in Pope County has generated much debate between residents and state and local officials in recent months. Arkansas voters approved Issue 4 in 2018, which allowed for new casinos to be built in Pope and Jefferson counties.Ģż

However, to operate in these counties, a private company must secure a letter of support from the County Judge or a resolution from the Quorum Court in order to obtain a casino license from the Arkansas Racing Commission.

Pope County officials have come under scrutiny recently over whether meetings regarding competition for the casino license complied with the stateā€™s Open Public Meetings Act.

Kalulu notes there have been ā€œreports that a Pope County justice of the peace and seven other residents filed a complaint with the county prosecutor concerning private meetings the county judge and some members of the quorum court held to discuss the competition for a casino license.ā€

Troubles with transparency arenā€™t just a problem in Pope County. Jacksonville city officials were recently informed by Pulaski County Prosecuting Attorney Larry Jegley that an regarding possible police pay raises likely violated the stateā€™s Freedom of Information Act.

Increasing transparency allows for residents to participate in the decision-making process of their local governments.

Kalulu said:

For county residents to be able to participate in the decision-making process, counties should ensure that residents are informed in a reasonable amount of time of the date, time and place of the meeting to allow enough time for residents to plan to attend. The Open Public Meetings Act requires that stakeholders such as media be notified “at least two hours before the meeting takes place in order that the public shall have representatives at the meeting. More needs to be done, especially if it’s an emergency or special meeting. Officials could also publish information about meetings online on county websites or social media pages. In our 2018 report ā€˜Access Arkansas: County-Level Web Transparency,ā€™ Terra Aquia, Joyce Ajayi, and I found that only 18 counties publish information about quorum courts’ meeting times and places. In addition, only 12 counties publish the agendas for the meetings online.ā€

Interested in more of our work on transparency? Check out Kaluluā€™s policy brief, ā€œLet the Sun Shine In: Improving Access to Arkansas Countiesā€™ Financial Information,ā€ which shows what an average Arkansan would experience when attempting to collect county financial information.

Kalulu is the author of Access Arkansas: County-Level Web Transparency with ACRE Program Coordinator Terra Aquia and Joyce Ajayi, a PhD student in the BTĢģĢĆLeadership Studies Program. Access Arkansas was ACREā€™s inaugural index that ranks all Arkansas counties by how much financial, political and administrative information their websites contain. An updated edition is scheduled for release later this year.

By Caleb Taylor

How can Arkansas reduce government corruption?

ACRE Policy Analyst Dr. Mavuto Kalulu discussed solutions to this question and four steps officials can take to improve transparency in an op-ed published in the Arkansas Democrat-Gazette on August 5th.

Kalulu begins by noting the size and scope of corruption at all levels of government in Arkansas. There have been 189 corruption-related convictions that concern about $13 million in taxpayer dollars from 2010 to 2017, according to Arkansas Legislative Audit.Ģż

Kalulu recommends prosecutors ensure thereā€™s ā€œrepercussion for failure to adhere to accounting standards and rules to minimize opportunities to misuse public resources.ā€ Kalulu also advises officials to ensure the ā€œsegregation of dutiesā€ between public employees to limit ā€œopportunities for one person to abuse public resources.ā€

Kalulu writes:

The last two areas for improvement in Arkansas are promoting transparency and access to information, and empowering citizens. A 2018 transparency report I co-authored with Terra Aquia and Joyce Ajayi assessing the state of transparency in Arkansas titled “Access Arkansas: County-Level Web Transparency” shows there is much room for improvement.ĢżAccessing fiscal, administrative, and political information on Arkansas counties is often difficult.ĢżFor example, only eight counties out of 75 had their 2017 budget published online when we looked for them last year. The Legislature should be applauded for enacting Act 564, which requires counties to publish their budgets and financial statements online beginning January 2020.ĢżEasy access to financial information allows residents to be better informed, but also to be watchdogs as well. Elected officials will be more prudent when taxpayers are on the lookout.ĢżWe need transparent processes in addition to knowing outcomes. Transparency helps with detection as well as deterrence of corruption. It’s important to catch and punish those who abuse public resources and trust, but it’s far better if it doesn’t even occur in the first place.ĢżFighting corruption requires a concerted effort. Those who abuse their positions should be found and punished. Processes should be improved to minimize the opportunities for abuse. Ensuring public information is easily accessible by the public informs and empowers them.ā€

You can read the full op-ed .

An updated index of county level transparency from “Access Arkansas” is scheduled to be released later this year.Ģż

Interested in more of our work on transparency? Check out ACREā€™s new policy brief, ā€œLet the Sun Shine In: Improving Access to Arkansas Countiesā€™ Financial Information,ā€ which shows what an average Arkansan would experience when attempting to collect county financial information.

More ACRE research on this issue can be found on our Transparency page.

Related Work

• A one page summary infographic of the currentĢżĢżstate of Fiscal Transparency in Arkansasā€™s Counties
• Read a recent op-ed on by a former ACRE student worker, Alexandria Tatem, ā€œ.ā€
• See how your countyā€™s web transparency compares to others in our study, Access Arkansas: County-Level Web Transparency

How difficult is it to get a copy of a county budget in Arkansas?

According to ACRE research , that depends on which of the 75 Arkansas counties you ask.

Alexandria Tatem, a BTĢģĢĆSchedler Honorā€™s College student and an ACRE student worker (who has now graduated) explains that Faulkner, Washington and Sebastian Counties are currently the only three counties in Arkansas to post their complete budgets online. That makes the job of finding out how county officials are spending taxpayer dollars easy for her and their citizens.

For the remaining 72 counties who donā€™t post their budgets online, Tatem received Ģżcomplete budgets by email and mail from 55 counties. It took 30 days, on average, to receive at least partial budgets from 67 counties.

She never received budgets from eight counties even after repeated attempts over several months using phone calls and emails.

How can this system be improved?

Tatem concludes:

All Arkansas counties should emulate Faulkner, Sebastian and Washington counties and publish current and historical budgets online. Doing so makes it easier for residents to access budgets. The benefits of fiscal transparency are well documented. A 2017 research paper in the Public Administration Review titled “25 Years of Transparency Research: Evidence and Future Directions” by Maria Cucciniello and others shows that fiscal transparency instills fiscal discipline and reduces corruption which in turn saves counties money.ĢżYou might be concerned that poorer counties do not have the resources to create and maintain websites like wealthier counties. But there are alternatives, like using the Arkansas.gov platform. In fact, a 2018 transparency report by Mavuto Kalulu, Terra Aquia and Joyce Ajayi titled “Access Arkansas: County-Level Web Transparency” reveals that even the counties that do not have stand-alone websites have some web presence through the Arkansas.gov platform. Financial information, including budgets, should be added to the information that the counties share with the residents through this platform.ā€

You can find out more about ā€œAccess Arkansas: County-Level Web Transparencyā€ here.

More of ACREā€™s work on transparency can be found here and here.

Tatemā€™s work on this project was supervised by Dr. Mavuto Kalulu, a policy analyst at ACRE who focuses on transparency and good governance.

How can Arkansas counties improve their online transparency?

Arkansas Center for Research in Economics (ACRE) Policy Analyst Mavuto Kalulu and ACRE Program Coordinator Terra Aquia discussed this and the findings of a new Transparency Index at the County Judges 2018 Fall meeting on September 14th in North Little Rock. County Judges are the chief executives of county governments in Arkansas.

This inaugural index ranks all Arkansas counties by how much financial, political and administrative information their websites contain, Kalulu told a crowd of about 60 county officials.

Kalulu and Aquia note in the report that Arkansas counties earned an F grade in the Ģż. They also note that only 8 of 75 Arkansas counties published budgets online for 2017ā€“2018.

While counties have room for improvement in web transparency, Kalulu stressed that index wasnā€™t released to criticize counties lagging behind. Instead, counties should use the report as a diagnosis to improve.

Kalulu said:

We just want to see where we are. What weā€™re more interested in is where we go from here. Improvement is whatā€™s so important for us, but you still have to start from somewhere.ā€œ

Why the focus on web transparency? Aquia explained that the report focuses on web transparency because studies show that a majority of individuals use the internet as their primary way to access information. Further, Ģżinternet usage in Arkansas has increased over the last decade. Therefore, counties should leverage online resources to ensure their constituents are well-informed about all the important decisions occurring at the county level.

Aquia said:

More Arkansans are using the internet to get their information. In 2013, only 16 percent of Arkansas had high-speed wireless internet capabilities in their areas. Just three years after that, that number had jumped to 58 percent. That type of jump in a three-year period is pretty amazing.”

The recommendations Aquia offered to county officials interested in improving their web transparency are:

• Take a look at where your county ranks and what information they publish using the Transparency Index.
• Utilize resources available to county governments on arkansas.gov.
• See what information is available on Arkansas Municipal League and Association of Arkansas Counties websites.
• Actively promote openness and transparency by letting citizens know about online resources available.

Coverage of the Transparency Index recently appeared in both and the .

In addition to Kalulu and Aquia, the report was also authored by Joyce Ajayi, a candidate in the Interdisciplinary PhD in Leadership Studies program at the University of Central Arkansas.