Did the Arkansas AG certify the Couch/Standerfer 'Arkansas Government Transparency Amendment' for the 2024 ballot?

Plain-English summary

David Couch and Jen Standerfer (a frequent Arkansas ballot-initiative team) submitted a proposed constitutional amendment to constitutionalize Arkansas's open-government rules. The amendment would have created a constitutional right to "government transparency," required public officers to conduct business openly, narrowed the legislature's power to weaken open-records or open-meetings laws, and authorized citizen lawsuits with damages against the state for transparency violations.

This is the first opinion in what would become a multi-cycle saga of submissions and rejections (continuing through Opinion Nos. 2023-114, 2024-006 and others). The AG rejected this initial version on three core grounds:

1. Undefined key terms. The amendment relied heavily on terms like "government transparency," "public record," "public meeting," "public notice," and "public process" without defining any of them. "Government transparency" appears as a constitutional right but is never defined and does not appear in existing Arkansas law. Other terms have partial statutory definitions in the FOIA but the amendment imports those terms without their definitions. The AG concluded voters would have no clear sense of what they were voting on.

2. Incorporation-by-reference problem. The amendment's substantive prohibitions (banning the legislature from making the public process "less transparent") implicitly incorporate huge swaths of existing Arkansas statutes, especially the FOIA, without saying so or including the relevant text. The AG cited the North Dakota Supreme Court's analysis in Haugen v. Jaeger (2020), which struck down a North Dakota constitutional amendment that incorporated statutes by reference, holding that the practice violated the constitution's "full text" requirement because voters could not see what they were actually putting in the constitution. The AG concluded the Arkansas Supreme Court would likely apply Haugen's reasoning under Arkansas's own full-text requirement (A.C.A. § 7-1-107, etc.).

The AG also pointed out that the Couch/Standerfer drafting was arguably worse than what Haugen had condemned. In Haugen, sponsors at least cited the statutes they were incorporating. Couch and Standerfer used FOIA's defined terms without naming the FOIA, which makes the incorporation invisible. The result: the amendment would convert ordinary statutes into "quasi-constitutional provisions" that could be permanently amended only by popular vote, but voters would not realize this from the ballot title.

3. Partisan coloring of "transparency." Citing Op. 2012-028, the AG noted that "transparency" carries an "obvious positive ring" and reads more as persuasion than information. The popular name and ballot title risked being "tinged with partisan coloring," which is grounds for rejection on its own. The AG flagged this for the sponsors so they could consider alternative phrasing in a future submission.

The AG also flagged a substantive concern: section (c) of the proposal would create a constitutional duty for "public officers" to conduct business openly. Existing FOIA exemptions (mandatory ones like home-address protection under § 25-19-105(b)(13), and discretionary ones like the personnel-matter executive-session exception under § 25-19-106(c)(1)(A)) might become unenforceable under that constitutional duty. If the sponsors meant to repeal discretionary exemptions, the ballot title needed to say so.

Couch and Standerfer would refile multiple revised versions, generating one of the most extensive rejection-and-resubmission sequences in recent AG history. The cycle eventually produced certifications and signature collection on related measures.

What this means for you

Ballot initiative sponsors

This opinion is a textbook on what not to do when constitutionalizing existing statutory law. Three rules that flow from it:

• Define every load-bearing term. If your amendment turns on what counts as a "public record" or "public meeting," include the definitions in your text. Do not assume voters will reach for the statute book.
• If you intend to incorporate a statute, include the text. Do not rely on shared vocabulary alone. Haugen v. Jaeger and the AG's reading of Arkansas full-text law both treat invisible incorporation as a fatal defect.
• Watch for partisan coloring in your branding. The word "transparency" has positive valence, and so does "patriot," "freedom," "fair," and many others. Even if your underlying amendment is good policy, the title will be reviewed for whether it persuades or informs.

The path forward in this kind of initiative is to either (a) include the FOIA text directly in the amendment so voters see what they are constitutionalizing, or (b) draft a narrower amendment that creates abstract constitutional protections but does not pull existing statutes up to the constitution by reference.

FOIA advocacy organizations and news organizations

If you support stronger constitutional protection for open records and meetings in Arkansas, watch the Couch/Standerfer cycle closely. The ultimate certification (or non-certification) of a transparency amendment will determine whether voters see this on the ballot.

The AG's reasoning here actually creates a roadmap. A successful amendment would need to:

1. Define "government transparency," "public record," "public meeting," "public notice," and any other operative terms.
2. Either include the substance of the FOIA exemptions it preserves or explicitly identify which exemptions are repealed.
3. Use neutral language in the popular name. "Open Records and Open Meetings Constitutional Amendment" might pass partisan-coloring review where "Transparency Amendment" does not.

Open government advocates

The amendment's core intent (limit the legislature's ability to chip away at FOIA) is a meaningful policy goal. If you are supporting this initiative, work with the sponsors on the drafting issues the AG identified. The legal framework for a successful amendment exists; the first Couch/Standerfer draft just did not satisfy it.

State legislators

If a transparency amendment passes, the practical effect would be to lock in (or expand) FOIA's protections at the constitutional level. The legislature would lose the ability to amend FOIA in ways the courts read as making the public process "less transparent" without supermajority votes. That is a significant restraint on legislative authority and worth careful study during the campaign cycle.

Government attorneys

If a constitutionalized transparency provision passes, your existing reliance on discretionary FOIA exemptions (executive sessions for personnel matters, etc.) may need to be reevaluated. Even the AG's analysis of this defective draft flagged the conflict.

Common questions

What is the Arkansas Government Transparency Amendment?
A proposed constitutional amendment that would create a citizen right to "government transparency" and limit the General Assembly's power to weaken open-records and open-meetings laws. The first version was rejected by the AG in this opinion. Several revised versions have been submitted in the months and years since.

What is incorporation by reference?
A drafting technique where one document refers to another instead of repeating its text. In ballot initiatives, incorporation by reference is problematic because voters cannot see the full text of what they are enacting.

What was Haugen v. Jaeger?
A 2020 North Dakota Supreme Court decision that struck down a constitutional amendment which had incorporated state statutes by citation. The court held the practice violated the state's "full text" requirement.

Is incorporation by reference also unconstitutional in Arkansas?
The Arkansas Supreme Court has not directly ruled on the question. The AG's view here, based on Arkansas's identical-purpose full-text requirements (A.C.A. § 7-9-104 and § 7-9-126(b)(7)), is that the state Supreme Court would likely follow Haugen.

What does "tinged with partisan coloring" mean?
A ballot-title rule from Bailey v. McCuen that bars titles which seem to advocate for a position rather than describe it. "Transparency Amendment" is more persuasive than descriptive because the word transparency carries positive associations.

Could the General Assembly fix this with statutory clarification?
The full-text requirement and the prohibition on partisan coloring are mostly judicial doctrine, not statutory. Some pieces could be statutorily clarified, but the ballot-title doctrine is largely a creature of Arkansas Supreme Court decisions.

Is the FOIA actually under threat in Arkansas?
The amendment's sponsors believed yes. Recent legislative sessions had seen various proposals to amend or restrict FOIA. The amendment was a response to that perceived erosion.

Background and statutory framework

A.C.A. § 7-9-107. Governs AG review of ballot initiatives. Requires the AG to either approve, substitute and certify, or reject and instruct redesign within 10 business days.

A.C.A. § 7-1-107, § 7-9-104, § 7-9-126(b)(7). Arkansas's "full text" requirements. The full text of the proposed measure must accompany the AG's submission, the signature petitions, and the signature verification process. The Secretary of State cannot count signatures on a noncompliant petition.

Arkansas FOIA (A.C.A. § 25-19-101 et seq.). Sets the rules for public records and meetings in Arkansas. Includes both mandatory exemptions (e.g., § 25-19-105(b)(13) home addresses) and discretionary exemptions (e.g., § 25-19-106(c)(1)(A) personnel-matter executive sessions).

Ballot title doctrine. Bailey v. McCuen, 318 Ark. 277 (1994): titles must be free of misleading tendency, including partisan coloring. Wilson v. Martin, 2016 Ark. 334: titles must define technical terms. Roberts v. Priest, 341 Ark. 813 (2000): titles cannot be approved if the underlying text is unclear or ambiguous.

Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1. Held that incorporation by reference of state statutes into a constitutional amendment violates the full-text requirement. Reaffirmed Dyer v. Hall (1924).

Op. 2012-028. Earlier AG opinion concluding "transparency" in a popular name is partisan-colored.

Citations

• A.C.A. § 7-9-107 (AG review of ballot initiatives)
• A.C.A. § 7-1-107, § 7-9-104, § 7-9-126(b)(7), § 7-5-309(b)(1)(B) (full-text and signature procedures)
• A.C.A. § 25-19-105(b)(13), § 25-19-106(c)(1)(A), § 25-19-107 (FOIA exemptions and enforcement)
• Ark. Const. amend. 7 (initiative and referendum)
• Ark. Const. art. 12, § 22 (referred constitutional amendments)
• Ark. Const. art. 5, § 1 (enacting clause for initiated statutes)
• Pafford v. Hall, 217 Ark. 734 (1950)
• Chaney v. Bryant, 259 Ark. 294 (1976)
• Moore v. Hall, 229 Ark. 411 (1958)
• May v. Daniels, 359 Ark. 100 (2004)
• Becker v. Riviere, 270 Ark. 219 (1980)
• Wilson v. Martin, 2016 Ark. 334
• Cox v. Daniels, 374 Ark. 437 (2008)
• Bailey v. McCuen, 318 Ark. 277 (1994)
• Plugge v. McCuen, 310 Ark. 654 (1992)
• Becker v. McCuen, 303 Ark. 482 (1990)
• Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994)
• Roberts v. Priest, 341 Ark. 813 (2000)
• Haugen v. Jaeger, 2020 N.D. 177, 948 N.W.2d 1
• Dyer v. Hall, 51 N.D. 391, 199 N.W. 754 (1924)
• Ark. Att'y Gen. Op. 2012-028

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-113
December 11, 2023
David A. Couch
1501 North University Avenue, Suite 219
Little Rock, Arkansas 72207

Jen Standerfer
2302 Southwest Nottingham Avenue
Bentonville, Arkansas 72713

Dear Mr. Couch and Ms. Standerfer:

I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed constitutional amendment.

My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure's merits. I am not authorized to consider the measure's merits when considering certification.

1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name and ballot title for a proposed initiated amendment to the Arkansas Constitution:

Popular Name: THE ARKANSAS GOVERNMENT TRANSPARENCY AMENDMENT

Ballot Title: AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO CREATE THE ARKANSAS GOVERNMENT TRANSPARENCY AMENDMENT; ESTABLISHING A RIGHT TO GOVERNMENT TRANSPARENCY; REQUIRING THAT PUBLIC OFFICERS CONDUCT GOVERNMENT BUSINESS IN A MANNER THAT IS OPEN TO ARKANSANS IN ACCESS TO PUBLIC RECORDS, CONDUCT OF PUBLIC MEETINGS, AND ISSUANCE OF PUBLIC NOTICE; PROVIDING THAT ANY LAW REQUIRING THE DISCLOSURE OF A PUBLIC RECORD OR THE OPENNESS OF A PUBLIC MEETING BE LIBERALLY CONSTRUED AND THAT ANY EXEMPTION FROM OR EXCEPTION TO DISCLOSURE OF A PUBLIC RECORD OR THE OPENNESS OF A PUBLIC MEETING BE NARROWLY CONSTRUED; PROHIBITING THE GENERAL ASSEMBLY FROM AMENDING A LAW OR ENACTING LAW TO DIMINISH PUBLIC ACCESS TO GOVERNMENT, BUT ALLOWING A TWO THIRDS MAJORITY OF THE GENERAL ASSEMBLY TO REFER THAT LAW TO THE PEOPLE TO BE APPROVED OR REJECTED AT THE NEXT GENERAL ELECTION; PERMITTING THE GENERAL ASSEMBLY, BY A NINE TENTHS VOTE AND IN THE CASE OF AN EMERGENCY, TO MAKE A REFERRED LAW TAKE IMMEDIATE EFFECT UNTIL APPROVED OR REJECTED AT THE NEXT GENERAL ELECTION; CLARIFYING THAT ANY ACT REFERRED UNDER THIS AMENDMENT IS NOT A REFERRED CONSTITUTIONAL AMENDMENT UNDER ARTICLE 12, SECTION 22 OF THE ARKANSAS CONSTITUTION; DEFINING THE TERM "DIMINISHES PUBLIC ACCESS TO GOVERNMENT" TO INCLUDE MAKING A PUBLIC PROCESS, PUBLIC MEETING, PUBLIC NOTICE, OR PUBLIC RECORD LESS TRANSPARENT OR MODIFYING THE LEGAL STANDARD FOR OR LIMITING THE RECOVERY OF PENALTIES, FEES, EXPENSES, OR COSTS; DEFINING THE TERM '"LESS TRANSPARENT TO THE PEOPLE" TO INCLUDE REDUCING THE PUBLIC'S ACCESS TO VIEW, HEAR, ATTEND, OBTAIN KNOWLEDGE OF, OR ENGAGE IN A PUBLIC PROCESS OR PUBLIC MEETING, REPEALING, REMOVING, OR REDUCING ANY TIME, PLACE MANNER, TERM, OR MEDIUM OF PUBLIC NOTICE, EXEMPTING ANY PORTION OF A PUBLIC RECORD FROM DISCLOSURE REQUIREMENTS, DESIGNATING ANY PORTION OF A PUBLIC RECORD TO BE CONFIDENTIAL, OR MAKING THE PROCESS FOR REQUESTING, OBTAINING, RECEIVING, OR VIEWING ANY PORTION OF A PUBLIC RECORD MORE DIFFICULT, COMPLICATED, OR EXPENSIVE FOR THE ARKANSAS CITIZEN; PROHIBITING THE GENERAL ASSEMBLY FROM REFERRING FUTURE AMENDMENTS TO THE ARKANSAS GOVERNMENT TRANSPARENCY AMENDMENT TO THE PEOPLE UNDER ARTICLE 12, SECTION 22; PRESERVING THE PEOPLE'S POWER TO AMEND THE ARKANSAS GOVERNMENT TRANSPARENCY AMENDMENT UNDER ARTICLE 5, SECTION 1 OF THE ARKANSAS CONSTITUTION; EMPOWERING ARKANSAS CITIZENS TO SUE THE STATE OF ARKANSAS IN COURT AND RECOVER DAMAGES FOR GOVERNMENT'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF ARKANSAS LAW CONCERNING GOVERNMENT TRANSPARENCY INCLUDING WITHOUT LIMITATION ACCESS TO PUBLIC RECORDS, OPENNESS OF PUBLIC MEETINGS, AND TIME, PLACE, MATTER, TERM, OR MEDIUM OF PUBLIC NOTICE; DECLARING THAT ALL PROVISIONS OF THE CONSTITUTION, STATUTES AND COMMON LAW OF THIS STATE TO THE EXTENT INCONSISTENT OR IN CONFLICT WITH ANY PROVISION OF THIS AMENDMENT ARE EXPRESSLY DECLARED NULL AND VOID; PROVIDING THAT THE PROVISIONS OF THIS AMENDMENT ARE SEVERABLE; AND, STATING THAT THE AMENDMENT IS EFFECTIVE NOVEMBER 6, 2024.

2. Rules governing my review. Arkansas law requires sponsors of statewide initiated measures to "submit the original draft" of the measure to the Attorney General. An "original draft" includes the full text of the proposed measure along with its ballot title and popular name. Within ten business days of receiving the sponsor's original draft, the Attorney General must respond in one of three ways:

• First, the Attorney General may approve and certify the ballot title and popular name in the form they were submitted.
• Second, the Attorney General may "substitute and certify a more suitable and correct ballot title and popular name."
• Third, the Attorney General may reject both the popular name and ballot title "and state his or her reasons therefor and instruct" the sponsors to "redesign the proposed measure and the ballot title and popular name." This response is permitted when, after reviewing the proposed measure, the Attorney General determines that "the ballot title or the nature of the issue" is (1) "presented in such manner" that the ballot title would be misleading or (2) "designed in such manner" that a vote for or against the issue would actually be a vote for the outcome opposite of what the voter intends.

3. Rules governing the popular name. The popular name is primarily a useful legislative device. While it need not contain detailed information or include exceptions that might be required of a ballot title, the popular name must not be misleading or partisan. And it must be considered together with the ballot title in determining the ballot title's sufficiency.

4. Rules governing the ballot title. The ballot title must summarize the proposed amendment. The Court has developed general rules for what must be included in the summary and how that information must be presented. Sponsors must ensure their ballot titles impartially summarize the amendment's text and give voters a fair understanding of the issues presented. The Court has also disapproved the use of terms that are "technical and not readily understood by voters." Ballot titles that do not define such terms may be deemed insufficient.

Additionally, sponsors cannot omit material from the ballot title that qualifies as an "essential fact which would give the voter serious ground for reflection." Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot. The ballot title is not required to be perfect, nor is it reasonable to expect the title to address every possible legal argument the proposed measure might evoke. The title, however, must be free from any misleading tendency—whether by amplification, omission, or fallacy—and it must not be tinged with partisan coloring. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

Finally, the Court has held that a ballot title cannot be approved if the text of the proposed amendment itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed amendment. Where the effects of a proposed amendment on current law are unclear or ambiguous, I am unable to ensure the popular name and ballot title accurately reflect the proposal's contents until the sponsor clarifies or removes the ambiguities in the proposal itself.

4. Application. Having reviewed the text of your proposed constitutional amendment, as well as your proposed popular name and ballot title, I must reject your popular name and ballot title due to the following problems in the text of your proposed measure, nearly all of which are imported into your ballot title:

• Lack of clarity on key terms. Your proposed text hinges on terms that are undefined and whose definitions would likely give voters serious ground for reflection. The following are some of the more problematic instances of this:

• Government transparency. Section 2(b) of your proposed text states that "[g]overnment transparency is a right of the citizens of Arkansas." The term "government transparency" is never defined in your proposed text. Nor is the term defined in existing state law. I am aware that a different provision of your proposed text would limit the General Assembly's power to make certain public records or meetings "less transparent to the people." While your proposed measure defines that phrase, that definition has certain issues, which are noted below. Further, it is unclear whether you intend this limitation on the legislature's power to be identical with the citizen's right to "government transparency." The meaning of this new constitutional right would likely give the voter serious ground for reflection. And since your ballot title simply repeats the phrase "government transparency" without providing any further context, I cannot ensure your ballot title does not omit material that qualifies as an "essential fact which would give the voter serious ground for reflection." Given this lack of clarity, I am unable to certify your ballot title as submitted or substitute a more appropriate title.

• Notice, meetings & records. Your proposed text often uses the terms "public record," "public meeting," "public notice," and "public process." None of these terms are defined in the proposal. A portion of those terms are defined in existing state statutes. Since your proposal relies so heavily on these terms, their scope would almost certainly give voters serious ground for reflection. Because you have not been clear on what you mean by these terms, I cannot ensure the ballot title does not mislead by omission.

• "A case concerning government transparency." While defining the phrase "diminishes public access to government," your 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 Act that can be enforced under certain conditions. See A.C.A. § 25-19-107. Those rights 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.

• Lack of the full text. The foregoing problems are likely the result of a larger underlying problem: the lack of the full text of the proposed measure.

• The existence of the full-text requirements. As noted above, when sponsors of a statewide measure seek the Attorney General's review under A.C.A. § 7-1-107, that statute requires sponsors to submit the "[t]he full text of the proposed measure." The importance of the "full text" extends to the signature-gathering stage under Amendment 7 to our state constitution and A.C.A. § 7-9-104, both of which require that the "full text" of the initiated measure accompany each petition. The requirement also extends to the signature-verification stage under A.C.A. § 7-9-126(b)(7), which prohibits the Secretary of State from counting any signatures on a petition that fails to comply with § 7-9-104.

• The meaning of the full-text requirements. While no Arkansas Supreme Court decisions have interpreted the meaning of this phrase, the Supreme Court of North Dakota has interpreted a materially identical phrase in its own law. Recently, in Haugen v. Jaeger, the North Dakota Supreme Court reviewed the legal validity of an initiated constitutional amendment that, by explicit citation, incorporated certain state statutes into the state constitution. The legal question in Haugen was whether such an incorporation violated the state's full-text requirement. Reaffirming a nearly 100-year-old decision on that topic, Dyer v. Hall, the Haugen court held that such an incorporation by reference violates the full-text requirement for two reasons. First, it cut against "the purpose of the full-text requirement," which "was to obviate all uncertainty as to the subject-matter dealt with in the Constitution." Second, Haugen approvingly cited Dyer's additional point that when initiated measures incorporate laws by reference, the "voters have no opportunity to read or examine fairly the contents [of those incorporated laws] and appreciate the real import of the proposed amendment." In my opinion, the Arkansas Supreme Court would likely agree with Haugen's conclusion and reasoning when interpreting our own full-text requirements.

• The lack of the full text in your proposal. Perhaps to avoid the issues with incorporation by reference discussed in Haugen, you appear to have chosen to incorporate existing state statutes into your proposal without explicitly citing or naming them but by using key terms from those statutes without carrying over those terms' definitions. Unlike the sponsors in Haugen who incorporated statutes by explicit reference to some of the statute's codification, you appear to be attempting to incorporate by explicit reference to the FOIA's defined terms without mentioning their codification or providing the relevant definitions. For example:

  • Section 2(d) refers to "[t]he provisions of law requiring the disclosure of a public record." You do not identify which provisions you have in mind. I am well aware of the provisions of the FOIA requiring the disclosure of a public record. But you do not reference the FOIA, nor do you identify what you mean by "the provisions of law requiring disclosure."

  • Your text refers to certain "public notice" being "required under law." You do not identify which legal requirements you have in mind. I am well aware of the public notice requirements required under the FOIA. But your proposal does not reference the FOIA, nor do you identify what you mean by "public notice" being "required under law."

  • Your proposed text defines the term "less transparent to the people" as any act of the General Assembly that, among other things, "[m]akes the process for requesting, obtaining, receiving, or viewing any portion of the public record more difficult...for the requester." (Emphases added.) What process? And more difficult than what? I assume you mean, "more difficult than the process as it currently exists under the FOIA." But you do not cite or name the FOIA.

  These examples illustrate how your proposal attempts to incorporate into the constitution the substance of existing state statutes without citing those statutes and without carrying over their definitions. The fact that you incorporate state statutes into your proposal without citing the statutes does not insulate your proposal from the problems the Haugen court identified. For the key issue in Haugen was not the fact that the sponsors cited the relevant statutes. Rather, the key issue was that the sponsors incorporated a statute into the constitution by reference rather than setting out in the constitution the provisions of those statutes. Indeed, in my view, your approach makes the issue worse. At least with a citation, the statute incorporated is theoretically clear to a perfectly informed voter. The use of less precise terms introduces potential ambiguities.

• The absence of the measure's full text renders the ballot title misleading by omission. When conducting my statutorily required review under A.C.A. § 7-9-107, I am required to determine whether the popular name and ballot title accurately and impartially summarize the text of the proposed measure. Therefore, ambiguities in the text or unclear terms prevent me (1) from ensuring the ballot title is not misleading and (2) from understanding the sponsor's intent fully enough to substitute and certify a different ballot title. These problems are amplified when, as here, the text incorporates by reference key terms of existing statutes without also including the definitions of those terms. Both issues identified in Haugen are present here. First, the proposed text lacks clarity regarding the meaning of key terms. Second, a voter reviewing your ballot title would not be sufficiently advised about the content of the statutes you are attempting to incorporate.

  An intended effect of your proposal, as I understand it, is to sharply limit the ability of the legislature to amend statutes (or enact new statutes) in a way that "diminishes public access to government" by making government "less transparent." Defining this limitation on the legislature's power by reference to the status quo level of "access to government" or "transparency" necessarily incorporates a substantial body of current statutes, including—but almost certainly not limited to—sections of the FOIA. Under your proposal, these current statutes would be turned into quasi-constitutional provisions. They could only be permanently amended or repealed by popular vote, and the only mechanism for the legislature to temporarily amend or repeal them before a popular vote can be held would be through a nearly unanimous vote of the legislature. If a proposal is going to incorporate and constitutionalize current law, the ballot title must attempt to describe this body of law. Without such a description, voters are not informed about what they are putting in the constitution. Under these circumstances, I am required to reject the popular name and ballot title and instruct you to redesign them to address these problems.

• Impact on state statutes. Section (c) of your proposed text would create a constitutional duty of "public officers" that seems contrary to existing state law: "It is the duty of public officers to conduct government business in a manner that is open to Arkansans in access to public documents, conduct of public meetings, and issuance of public notice." Under current law, public employees and officials have a duty to follow certain statutes that regulate which records and meetings must be open on request and which must or may be exempted from public disclosure. Some FOIA exemptions are mandatory, such as A.C.A. § 25-19-105(b)(13), regarding the disclosure of certain public employees' home addresses. But some FOIA exemptions are discretionary, such as A.C.A. § 25-19-106(c)(1)(A), which allows executive sessions for certain personnel matters. If your proposal would create a constitutional duty for public officers "to conduct government business in a manner that is open to Arkansans," then it is difficult to see how a public official could assert a discretionary statutory exemption. If it is your intent to repeal discretionary exemptions, that would need to be noted in the ballot title. But because your intent is not entirely clear at this point, I am unable to ensure the ballot title is not misleading by omission.

While the foregoing defects are sufficient grounds for me to reject your submission, please note that there is an additional issue with your proposed popular name. As one of my predecessor's concluded in Opinion No. 2012-028, the use of the term "transparency" in a popular name "has an obvious positive ring to it" that seems more designed to persuade than inform. This raises a concern about partisan coloring. I am flagging this for you now in case you would like to provide an alternative in a future submission.

Because of the issues identified above, my statutory duty is to reject your proposed popular name and ballot title, stating my reasons therefor, and to instruct you to "redesign" your proposed constitutional amendment, popular name, and ballot title.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General