Why did the Arkansas AG reject the December 2023 first version of the Arkansas Government Transparency Act?

Plain-English summary

This is the December 2023 first submission of the citizen-initiated transparency act that the sponsors (Couch and Standerfer) refined over six months until certification in Opinion 2024-020 (April 2024).

The AG rejected this version because of multiple defects in the text. The most significant ground was that several provisions were "clearly unconstitutional," which under Kurrus v. Priest means the measure cannot invoke the legislative process at all.

Unconstitutional procedural-rule provision. The proposed Section 10 (the security-records release provision) would have required custodians to file lawsuits in circuit court to "rebut the presumption" of disclosure for security records over three months old. It then specified pleading rules: the custodian must serve an affidavit on the requester, the court must hold a hearing within seven days, and the requester "may engage with the court as a party to the action." The AG noted that under Amendment 80, § 3 of the Arkansas Constitution, the rules of pleading, practice, and procedure are reserved to the Arkansas Supreme Court. The General Assembly cannot prescribe these procedural rules, and neither can a citizen-initiated act.

Other defects. The opinion identifies additional issues with the proposed Transparency Commission's appointment structure and other ambiguities. The AG used Roberts v. Priest's text-summary disconnect doctrine to support rejection: when the text has structural defects, the AG cannot certify the title (because the title would summarize a defective measure) and cannot substitute and certify (because any accurate substitute would expose the defects).

The sponsors continued revising. The Section 10 procedural-rule provisions were dropped. The Commission's appointment structure was simplified. By the time of Opinion 2024-020, the act was clean enough for certification.

What this means for you

Ballot initiative sponsors

This opinion is the source of two important cautions:

First, do not write procedural rules for the courts into a citizen-initiated measure. Amendment 80, § 3 reserves court procedural rulemaking to the Arkansas Supreme Court. Provisions that prescribe pleading, hearing schedules, or party rules for litigation are unconstitutional and bar certification under Kurrus v. Priest. If you want a litigation-facing remedy, define the right (e.g., "a citizen may sue") and let courts apply their existing procedural rules.

Second, when the AG identifies a specific defect, address that defect rather than working around it. The sponsors here continued submitting versions with structural issues for nearly six months before achieving certification.

Government transparency advocates

The substantive transparency reforms in this December 2023 version (FOIA reform, three-day deadline, civil penalties, attorney's fees, the Transparency Commission) survived through every iteration. The drafting issues were what required redrafting; the policy goals were not the obstacle.

Constitutional law attorneys

Cite Kurrus v. Priest, 342 Ark. 434 (2000), for the proposition that a clearly unconstitutional measure cannot invoke the legislative process. The Arkansas Supreme Court applies this rule narrowly (only "clearly contrary to law"), and Amendment 80, § 3 procedural-rule violations qualify.

Common questions

What is Amendment 80, § 3?
Section 3 of the 2000 judiciary amendment to the Arkansas Constitution. It reserves the rules of pleading, practice, and procedure in the courts to the Arkansas Supreme Court. The General Assembly cannot prescribe such rules by statute, and the people cannot prescribe them by initiated act. This is a separation-of-powers principle.

Can citizens write any initiated act they want?
No. Initiated acts must comply with the Arkansas Constitution. They cannot violate the First Amendment, the Equal Protection Clause, Amendment 80's separation of powers, or any other constitutional constraint. The AG screens for clearly unconstitutional provisions during certification review.

What was the Section 10 problem specifically?
The proposal's security-records release framework had the custodian filing a lawsuit and the court following specific procedural rules (affidavit service, seven-day hearing, party engagement procedures). Those are court rules, which only the Arkansas Supreme Court can write.

Background and statutory framework

A.C.A. § 7-9-107(e). Mandates rejection when a measure or its title is misleading.

Ark. Const. amend. 80, § 3. Reserves court procedural rulemaking to the Arkansas Supreme Court.

Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000). Clearly unconstitutional measures cannot invoke the legislative process.

Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). Text-summary disconnect doctrine.

Subsequent versions. Opinions 2023-127 (BT-1 with disconnect issue), 2024-009 through 2024-013 (rejections over preemptive-repeal clause), 2024-020 (certified).

Citations

• A.C.A. § 7-9-107
• Ark. Const. amend. 80, § 3
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Ark. Att'y Gen. Ops. 2013-113, 2011-163 (clearly unconstitutional measures); 2024-020 (certified version)

Source

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

Original opinion text

Opinion No. 2023-116
December 18, 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 initiated act.

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 act:

Popular Name
THE ARKANSAS GOVERNMENT TRANSPARENCY ACT

Ballot Title
AN INITIATED MEASURE AMENDING THE ARKANSAS CODE TO CREATE THE "ARKANSAS GOVERNMENT TRANSPARENCY ACT"; TO AMEND THE FREEDOM OF INFORMATION ACT OF 1967 TO PROTECT CITIZENS' INTEREST IN GOVERNMENT TRANSPARENCY, PROTECT CITIZENS' PRIVACY INTERESTS, AND TO ENSURE THE GOVERNMENT SHARES INFORMATION WITH THE PUBLIC FREELY; TO REQUIRE THAT PUBLIC MEETINGS BE CONDUCTED IN AND NOTICE OF THE PUBLIC MEETING BE GIVEN A MANNER THAT ALLOWS THE PUBLIC TO ATTEND AND HEAR THE GOVERNING BODY'S MEANINGFUL DISCOURSE AND DELIBERATION ON OFFICIAL BUSINESS; TO CREATE THE ARKANSAS GOVERNMENT TRANSPARENCY COMMISSION TO HELP CITIZENS OBTAIN COMPLIANCE WITH, TO ISSUE OPINIONS CONCERNING, AND TO SANCTION VIOLATIONS OF GOVERNMENT TRANSPARENCY LAWS; TO REPEAL THE PROVISION OF LAW ALLOWING A SCHOOL BOARD OF DIRECTORS, SUPERINTENDENT, AND THEIR ATTORNEY FROM HOLDING A MEETING OUTSIDE OF PUBLIC OBSERVATION TO DISCUSS PRE-LITIGATION, LITIGATION, SETTLEMENT, CONTRACT DISPUTES, AND REAL PROPERTY; TO DEFINE "CYBERSECURITY" AND "PUBLIC NOTICE"; TO PROTECT THE PRIVACY OF PERSONAL INFORMATION CONTAINED WITHIN PUBLIC RECORDS IN WHICH AN INDIVIDUAL HAS A SUBSTANTIAL PERSONAL PRIVACY INTEREST; TO CLARIFY THAT PUBLIC RECORDS SHALL BE DISCLOSED WITHIN THREE (3) DAYS OF THEIR REQUEST, AND THAT THE CUSTODIAN MUST EXPLAIN THE REASON FOR ANY NONDISCLOSURE AND SPECIFY THE DATE AND TIME FOR COMPLIANCE; TO CLARIFY THAT A COMMUNICATION BETWEEN TWO (2) OR MORE MEMBERS OF A GOVERNING BODY FOR THE PURPOSE OF EXERCISING A RESPONSIBILITY, AUTHORITY, POWER, OR DUTY DELEGATED TO THE GOVERNING BODY CONCERNING OFFICIAL ACTION SHALL BE OPEN TO THE PUBLIC AND AVAILABLE FOR PUBLIC ATTENDANCE; TO CLARIFY THAT A SERIES OF COMMUNICATIONS BETWEEN AN AGENT, EMPLOYEE, OR PERSON PAID BY THE GOVERNING BODY AND MORE THAN ONE (1) MEMBER OF THE GOVERNING BODY TO POLL THE VOTES OR SUPPORT OF THE GOVERNING BODY CONCERNING OFFICIAL ACTION SHALL BE OPEN TO THE PUBLIC AND AVAILABLE FOR PUBLIC ATTENDANCE; TO ALLOW RECOVERY OF ATTORNEYS FEES, EXPENSES, AND COSTS BY A PLAINTIFF WHEN THE PLAINTIFF SUBSTANTIALLY PREVAILS IN AN ACTION FOR A VIOLATION OF LAW CONCERNING GOVERNMENT TRANSPARENCY; TO CREATE A CIVIL PENALTY WITH PERSONAL LIABILITY FOR A PERSON WHO VIOLATES THE THE [sic] FREEDOM OF INFORMATION ACT OF 1967; TO REQUIRE DISCLOSURE OF PUBLIC RECORDS THAT ARE MORE THAN THREE (3) MONTHS OLD AND REFLECT THE PLANNING OR PROVISION OF SECURITY SERVICES TO CONSTITUTIONAL OFFICERS AND THEIR FAMILIES, THE GOVERNOR'S MANSION, AND THE STATE CAPITOL SHALL BE DISCLOSED UNLESS A COURT FINDS THAT CONFIDENTIALITY IS ESSENTIAL TO THE ONGOING SECURITY SERVICE; TO PROVIDE FOR THE QUALIFICATIONS, PROCEDURES, FUNDING, AUTHORITY, AND FUNCTIONS OF THE ARKANSAS TRANSPARENCY COMMISSION; TO ESTABLISH THE ARKANSAS TRANSPARENCY COMMISSION WITH THREE (3) MEMBERS APPOINTED BY THE SUPREME COURT, ONE (1) MEMBER APPOINTED BY THE PRESIDENT PRO TEMPORE OF THE SENATE, AND ONE (1) MEMBER APPOINTED BY THE SPEAKER OF THE HOUSE; TO PROVIDE AN APPELLATE PROCESS FOR REVIEW OF DECISIONS MADE BY THE ARKANSAS TRANSPARENCY COMMISSION; TO REPEAL ANY LAW ENACTED BY THE GENERAL ASSEMBLY AFTER JANUARY 1, 2024 AND BEFORE ADOPTION OF THIS ACT BY THE PEOPLE THAT AMENDS ARKANSAS LAW IN A MANNER THAT REDUCES GOVERNMENT TRANSPARENCY INCLUDING WITHOUT LIMITATION REDUCING THE OPENNESS OF PUBLIC MEETINGS, LIMITING DISCLOSURE OF PUBLIC RECORDS, OR ALTERING THE TIME, PLACE, MANNER TERMS, OR MEDIUM OF PUBLIC NOTICE; TO DECLARE ALL PROVISIONS OF LAW INCONSISTENT WITH THIS ACT ARE NULL AND VOID; AND TO PROVIDE THAT THE PROVISIONS OF THE ACT ARE SEVERABLE.

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: certify as submitted, substitute and certify a more suitable and correct ballot title and popular name, or reject the popular name and ballot title and instruct the sponsors to redesign the proposed measure, popular name, and ballot title. The third response is permitted when the ballot title would be misleading or when a vote for or against the issue would be a vote for the opposite outcome.

3. Rules governing the popular name. The popular name must not be misleading or partisan and must be considered together with the ballot title.

4. Rules governing the ballot title. The ballot title must impartially summarize the measure, must not omit essential facts that would give voters serious ground for reflection, must not use undefined technical terms, must be brief and concise, and must be free from misleading tendencies. Where the text of the proposed measure contributes to confusion or ambiguity, the AG cannot certify or substitute a ballot title.

5. Application. Having reviewed the text of your proposed initiated act, I must reject your popular name and ballot title due to the following problems in the text of your proposed measure:

• Unconstitutional provisions. Several provisions in your proposed text would be clearly unconstitutional if enacted. As the Arkansas Supreme Court and several of my predecessors have noted, when a proposal is clearly unconstitutional, its sponsors are not entitled to invoke the legislative process at all. It is misleading to present a proposed measure to a voter when some or all of that measure is clearly unconstitutional and therefore could not become effective.

• Lawsuit by custodian. Section 10 contains a detailed series of provisions regarding the disclosure of public records that pertain to security. The provision requires that, if the record is more than three months old, then it is "presumed to be subject to disclosure." To "rebut this presumption and prevent the disclosure of the requested public record," your proposed text states that, within three days of receiving the request, the custodian must file a lawsuit: "The custodian shall initiate review by a circuit court with jurisdiction…." The custodian is required to provide certain forms of notice to the requester: "The custodian shall serve the requester an affidavit giving notice of the action, of all scheduled court dates, and that the requester has a right to respond at the circuit court hearing." Your proposed text states vaguely that the "requester may engage with the court as a party to the action." And the text would require the circuit court to "set a hearing or trial on the matter no later than" seven days after the custodian files. Nearly all these provisions are procedural rules that attempt to control the pleading, practice, and procedure of the courts. But our state constitution, under section 3 of Amendment 80, expressly reserves those matters to the Arkansas Supreme Court.

• Appointments to the Commission. Section 10 would create the "Arkansas Government Transparency Commission," with three members appointed by the Arkansas Supreme Court, one by the President Pro Tempore of the Senate, and one by the Speaker of the House. Vesting executive-branch appointments in the Supreme Court raises separation-of-powers concerns under Amendment 80.

The opinion identifies additional issues with the personnel-records carve-out (further addressed in Opinion 2023-127), ambiguities in key terms, and other defects in the text.

Because of the foregoing issues, my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title and to instruct you to redesign your proposed measure, popular name, and ballot title.

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

Sincerely,
TIM GRIFFIN
Attorney General