Why did the Arkansas AG reject the December 2023 Government Transparency Amendment ballot title (BT-1)?

Plain-English summary

This is the lead opinion in a four-opinion sequence (BT-1 through BT-4) addressing parallel submissions of the same proposed transparency constitutional amendment. The sponsors had received Opinion 2023-113 on an earlier version, and this round was supposed to address the defects flagged there. It did not.

The AG identified three sets of problems:

1. Continued failure to clarify key terms. Opinion 2023-113 had told the sponsors that the proposed text "hinges on terms that are undefined and whose definitions would likely give voters serious ground for reflection." Three examples were cited:
- "Public record," "public meeting," "public notice," and "public process" remained undefined.
- The phrase "a case concerning government transparency" was used repeatedly even though no such cause of action exists in Arkansas law. The sponsors' new definition of "government transparency" did not cure this because the text did not actually create a "case concerning government transparency" cause of action.
- Cross-references to status-quo terms ("less accessible," "modified legal standard") without specifying what status quo applies.

The AG noted: "While you have attempted to resolve one of those issues, you have not even attempted to resolve the other two."

2. Continued failure to include the full text. The proposal continues to incorporate key FOIA provisions by implicit reference (using statutory terms without defining them). Amendment 7 to the Arkansas Constitution requires the "full text" of the proposed measure to accompany every petition. The AG's prior Haugen v. Jaeger / Dyer v. Hall analysis (developed at length in Opinion 2023-113) holds that incorporation by reference defeats the full-text requirement.

3. Ballot-title summary of nonexistent text. A clause in the ballot title summarized something that did not appear in the measure's actual text. This is the Roberts v. Priest "disconnect" doctrine: the AG cannot certify a measure where the text and the title do not align.

The AG concluded that under § 7-9-107(e), he must reject the popular name and ballot title and instruct the sponsors to redesign the amendment, popular name, and ballot title.

This opinion's analysis is incorporated by reference into Opinions 2023-124, 2023-125, and 2023-126 (the parallel rejections of BT-2, BT-3, and BT-4).

What this means for you

Ballot initiative sponsors

This is one of the most useful AG opinions in this dataset for understanding why amendments fail certification. Three lessons:

First, when the AG flags an issue in an earlier opinion, address it concretely. The sponsors here failed to define "public record" / "public meeting" / "public notice" / "public process" even after being told these terms needed definition. The AG read the silence as a refusal to address the issue.

Second, invented causes of action need to be created in the text. If your ballot title says voters can sue for "a case concerning government transparency," the text has to actually create that cause of action with operative language. Just defining "government transparency" does not create the cause of action.

Third, status-quo cross-references ("less accessible than what?") are inherently ambiguous and the AG will require you to either define the baseline explicitly or rephrase to remove the cross-reference.

Government transparency advocates

The amendment was eventually certified in Opinions 2024-005 through 2024-008 after the sponsors addressed these issues. The certified versions used "government transparency" as a defined term and abandoned the "case concerning government transparency" framing in favor of more concrete language about specific FOIA enforcement actions.

Constitutional law attorneys

This opinion is a clean illustration of the "disconnect" doctrine and the full-text requirement. Cite Roberts v. Priest for the disconnect proposition; cite Haugen v. Jaeger / Dyer v. Hall for the incorporation-by-reference doctrine.

Common questions

What is the BT-1 through BT-4 sequence?
Sponsors of complex measures sometimes submit multiple parallel popular names and ballot titles for the same underlying text, hoping at least one combination will be certified. The AG addresses each separately. Here, all four were rejected for the same reasons.

What did sponsors do next?
They revised the text and submitted again. The next-round versions were certified in Opinions 2024-005 through 2024-008.

Why is "incorporation by reference" such a problem?
Because Amendment 7 requires the full text of the measure to appear on the petition. Voters cannot meaningfully consent to amend the constitution by reference to terms whose definitions are in statutes that may change.

Citations

• A.C.A. § 7-9-107(e)
• Ark. Const. art. 5, § 1 (Amendment 7)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (disconnect doctrine)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Ark. Att'y Gen. Ops. 2023-113 (prior opinion incorporated), 2024-005 (certified version)

Source

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

Original opinion text

Opinion No. 2023-123
January 8, 2024
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. On December 11, 2023, in Opinion No. 2023-113, I addressed a prior version of your proposed constitutional amendment. You have now revised the text of your proposal and submitted it with four different popular names and four different ballot titles. You ask that I certify all four submissions.

You have labeled your four separate submissions "BT - 1," "BT 2," "BT 3," and "BT 4." This opinion addresses "BT - 1," and separate opinions address the latter three. Those three opinions incorporate the following analysis.

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. The popular name was "THE ARKANSAS GOVERNMENT TRANSPARENCY AMENDMENT" with a long ballot title establishing government transparency as a constitutional right, prohibiting the General Assembly from amending or enacting law to "diminish public access to government" except by referral to voters with a two-thirds supermajority, defining "diminishes public access to government" through cross-references to undefined terms (public process, public meeting, public notice, public record), and including various procedural and effective-date provisions.

2-4. Rules governing review. The AG's three-option response under § 7-9-107(d) and the standards governing popular names and ballot titles are set out in Opinion 2023-116 and incorporated here. Sponsors must submit "the original draft," which includes the full text along with the ballot title and popular name. The AG must respond within ten business days. Ballot titles must impartially summarize the measure, must not omit essential facts, must not use undefined technical terms, must be brief, must be free from misleading tendencies, and must not contradict the measure's text.

5. 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 three sets of problems:

• Continued failure to clarify key terms. In Opinion No. 2023-113, I said that your "proposed text hinges on terms that are undefined and whose definitions would likely give voters serious ground for reflection." I provided three examples of this issue. While you have attempted to resolve one of those issues, you have not even attempted to resolve the other two.

• Notice, meetings & records. The first version of your proposed text, like your current version, uses the terms "public record," "public meeting," "public notice," and "public process." In Opinion No. 2023-113, I noted that none of those terms are defined in the proposed text. You have not even attempted to address this. Therefore, I simply repeat what I said before: "A portion of those terms are defined in existing state statutes. Since your proposal relies so heavily on those terms, their scope would almost certainly give voters serious ground for reflection."

• A "case concerning government transparency." The first version of your proposed text, like your current version, repeatedly uses the phrase a "case concerning government transparency." In Opinion No. 2023-113, I noted that, under current Arkansas law, there is no such cause of action. Rather, "citizens have rights under the Freedom of Information Act (FOIA) that can be enforced under certain conditions. See A.C.A. § 25-19-107." I am aware that your revised text defines the term "government transparency." But that definition does not resolve this problem because your text does not provide a cause of action regarding "government transparency."

• Continued failure to include the full text. Like the earlier version of your proposed text, the foregoing problems are themselves the result of a larger underlying problem: the lack of the full text of the proposed measure. In Opinion No. 2023-113, I extensively discussed the constitutional and statutory requirement that the proposed measure contain the "full text." Like the earlier version of your proposal, the current version appears to be an attempt to incorporate key provisions of the FOIA into the constitution by referencing the FOIA's key terms without explicitly citing the FOIA or setting out the definitions of those terms.

• A lengthy clause in your ballot title summarizes something that does not appear in your text. The ballot title's reference to a "case concerning government transparency" describes a cause of action that the text does not actually create. Under Roberts v. Priest, when the text and ballot title do not align, the AG cannot certify the title and cannot substitute and certify a different title.

Because of the issues identified above, my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title, stating my "reasons therefor," and to "instruct…[you] to redesign your proposed measure and the ballot title…in a manner that would not be misleading."

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

Sincerely,
TIM GRIFFIN
Attorney General