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A plan to codify FOIA in Arkansas

The recent special session of the Arkansas legislature, and specifically the attempts to heavily revise the Arkansas Freedom of Information Act, brought together some strange alliances. Groups from across the political spectrum agreed with one another that the FOIA law in place should not be tampered with. So much so, that a ballot question committee has been formed to codify the FOIA laws in the Arkansas Constitution with an amendment.

It’s not exactly the Odd Couple, but if you only know David Couch and Nate Bell from their social media presence prior to this year, it might seem at least unlikely that the two are pairing up. Nate Bell is a former Republican state representative in the General Assembly. His legislative voting record is anti-abortion, pro-concealed carry, and fiscally conservative. David Couch is an attorney who has worked on many of the constitutional amendments that have been on the ballot, including the medical marijuana amendment that passed in 2016 and an amendment in 2014 that would have legalized alcohol statewide. But last week as they sat next to each other in the Bruce and Ann Applegate News Studio 2, a common refrain came from both of them: affirmations of one another's stances. Bell pushed back against the idea that people should be surprised that he and Couch would be working on a project together.

“The two of us actually have some history of working together," Bell said. "The ethics amendment that passed [in 2012] was probably where I first encountered one-on-one working with David. There's a lot of things that David and I disagree on, but there's a lot of things we agree on. We just set those things that we disagree on aside and work on the things we agree on."

"But the most important thing we agree on is that the power belongs with the people," Couch said. "And whether you disagree on an issue, that's for the people to decide."

Bell said state legislators use FOIA quite a lot. He pointed to a time in 2012 where he and Senator Bryan King helped reveal that the Arkansas Forestry Commission was violating state budget law. If the original version of the FOIA restriction billhad passed, this this request, said Bell, "would have been prohibited under the proposed law that ultimately went down.

Couch said he has a lot of ideas for what should be brought to the ballot for constitutional amendments, but he didn’t think codifying FOIA would be one of them.

“The first time this popped into our mind was the Friday before the General Assembly went into session and the draft of the bill was released," Couch said. "When we first looked at this, I thought — because of the way that the General Assembly had acted in the past session — that they would just ram this thing right on through."

Couch said he initially thought they would need to write a ballot title for a referendum. You might remember the referendum process from earlier this year when the group CAPES attempted to collect signatures to overturn the LEARNS Act. Instead of a referendum, Couch and Bell are working to put together a ballot question committee for a citizen initiated constitutional amendment. This is an organization that can receive contributions for the purpose of expressly advocating the qualification, disqualification, passage, or defeat of any ballot question. And Couch said that process is starting immediately for them.

“We have to collect 90,704 signatures of registered voters all across the state of Arkansas by July of 2024," Couch said. "We're in the process of drafting an amendment, and the process is going to be open and transparent."

Once the amendment is drafted, it is sent to the Attorney General, where the ballot title must be approved.

The final version of the bill, which is now Act 7, amended the Arkansas Freedom of Information Act to exempt records that reflect "the planning or provision of security services of the Governor, or Lieutenant Governor, Attorney General, Secretary of State, Auditor of State, Treasurer of State, Commissioner of State Lands, members of the General Assembly, Justices of the Supreme Court, or Judges of the Court of Appeals." Governor Sarah Huckabee Sanders said the changes to this bill "protect her family." Bell said this was a diversion by the governor.

The reality is that this governor knows better than probably anyone in Arkansas, that you can grow up as a child in the Governor's Mansion under existing FOIA and be safe. She did it herself.
Nate Bell

Bell pointed to a question that Representative Jamie Scott of North Little Rock asked during the House State Agencies and Governmental Affairs Committee meeting. Representative Scott is asking Representative David Ray of Maumelle, who was the lead sponsor of the House version of the bill.

"Our FOIA law has been in effect since 1964," Rep. Scott said. "Can you point to or briefly give me an instance where — in the current statue — the governor or her family has been put at risk?"

"I'm not aware of any examples where individuals have used the FOIA — up until now — to obtain information related to their safety and security," Rep. Ray replied.

Bell said the threat for the children of elected officials is real. While in office, a person threatened rape and murder Bell's daughter. Bell contacted Attorney General Dustin McDaniel for help. "He immediately got on the phone with the FBI," said Bell, "and that person got a knock on their door, and that problem was resolved. Those threats are real and I'm certainly not taking that lightly. I'm just saying that I don't believe that the people knowing where the governor's been, who she went with, and what it cost is jeopardizing the safety of her children."

Since this issue arose, Couch and Bell have been in several Zoom calls with groups of people across the political spectrum. Couch said the movement started behind the LEARNS Act referendum and has continued with AFOIA.

I think we are at a point in Arkansas, where the power of the people is bubbling. I think we have an opportunity to make transitional, generational changes in our state now as a result of the overreach of the General Assembly and the heavy-handedness of the Governor.
David Couch

When you have a group of people who fall all along the political spectrum trying to align on one common issue like FOIA, especially in a Facebook group, Bell said they have a guiding principle:

“We discuss ideas, not people. There are a number of people who tried to make it about [Governor Sanders]," Bell said. "I just refuse to let it be about that."

“I agree 100%," Couch replied. He said the most recent Zoom call they were on was predominately conservative citizens. "And I told them, 'Guys, I'm so honored and happy to be a part of this, because I don't ever get to talk to you. I think that we have more in common than we have not in common. Let's not let the divisive issues divide us.'"

If the ballot title is approved by the attorney general and collects enough signatures, it will be on the ballot on November 5, 2024.

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Matthew Moore is senior producer for Ozarks at Large.
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