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

Plain-English summary

The sponsors submitted a revised proposed Arkansas Government Transparency Amendment with four proposed ballot titles. Opinion 2023-123 addresses BT-1; the separate opinions addressing BT-2 through BT-4 incorporate its analysis. The AG rejected the proposed popular name and BT-1 title for three sets of problems.

First, the text still did not define “public record,” “public meeting,” “public notice,” or “public process.” It also used “a case concerning government transparency,” although Arkansas law has no cause of action with that name and the revised proposal did not create one. The AG had raised these points in Opinion 2023-113.

Second, the proposal appeared to incorporate existing statutes without setting out the full text of the measure. Its restriction on laws that “diminish public access to government” depended on terms such as “less accessible” and “modifie[d]” without identifying the starting standard. The AG asked, “Less accessible” than what? He concluded that importing the existing statutory standard by implicit reference violated the full-text requirement.

Third, the ballot title said public officers must conduct government business openly in access to records, meetings, and notice. The AG could not find that requirement in the revised measure. The earlier version had contained it. He treated the mismatch as a disconnect between title and text under Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).

The AG said these problems prevented certification or substitution of a title. Under A.C.A. § 7-9-107(e), he rejected the submission and instructed the sponsors to redesign the measure, popular name, and ballot title.

What this means for you

Ballot initiative sponsors

Define terms central to the measure’s effect. Here, the AG specifically identified “public record,” “public meeting,” “public notice,” and “public process,” as well as the proposed phrase “a case concerning government transparency.” He said the sponsors had not addressed two issues raised in Opinion 2023-113.

If a measure limits changes to the existing level of public access, explain which current law supplies that level. The AG found the proposal's references to a status quo left voters without the full text of the proposed change. He also asked the sponsors to check whether each ballot-title clause actually describes the revised text.

Government transparency advocates

This opinion assesses the December 2023 submission. The AG did not rule on the proposed measure's merits. His objections concerned what the text said, what it left undefined, and whether the ballot title accurately described it.

Constitutional law attorneys

The AG relied on Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), for the disconnect between the ballot title and the measure. He incorporated his analysis in Opinion 2023-113 on the full-text requirement.

Common questions

Why were there four opinions?
The sponsors submitted one revised measure with four proposed popular names and ballot titles. This opinion addresses BT-1; the other three opinions incorporate its analysis.

What was the ballot-title disconnect?
The title said the measure would require public officers to conduct government business openly concerning records, meetings, and notice. The AG could not find that requirement in the revised text, though it appeared in the earlier version.

Why did the full-text requirement matter?
The AG said the measure tried to import existing statutory standards through undefined terms and references to changes in the status quo. Without describing the law to be incorporated, voters would not know what was being put in the constitution.

Citations

• A.C.A. § 7-9-107(e)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Ark. Att'y Gen. Op. 2023-113

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. 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 GOVERNMENT’S OBLIGATION TO SHARE
   INFORMATION WITH CITIZENS AS A RIGHT;
   Mr. David A. Couch
   Ms. Jen Standerfer
   Opinion No. 2023-123
   Page 2

   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;

   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 OPEN, ACCESSIBLE, OR AVAILABLE
   TO THE PEOPLE OR MODIFYING THE LEGAL STANDARD FOR OR
   LIMITING THE RECOVERY OF PENALTIES, FEES, EXPENSES, OR COSTS;

   DEFINING THE TERM sic]”‘ LESS OPEN, ACCESSIBLE, OR AVAILABLE 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,

   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;
   Mr. David A. Couch
   Ms. Jen Standerfer
   Opinion No. 2023-123
   Page 3

      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;
   
      CLARIFYING THAT THIS AMENDMENT DOES NOT ALTER THE
      CONSTITUTIONAL POWERS OF THE STATE SUPREME COURT;
   
      CLARIFYING THAT THIS AMENDMENT DOES NOT ALTER THE
      CONSTITUTIONAL POWERS OF THE GENERAL ASSEMBLY TO
      DETERMINE THE RULES THAT AFFECT THE OPENNESS OF STATE
      LEGISLATIVE MEETINGS;
   
      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. 1 An “original draft” includes the full text of the proposed measure along with its ballot title and popular name. 2 Within ten business days of receiving the sponsor’s original draft, the Attorney General must respond in one of three ways:

1
A.C.A. § 7-9-107(a).
2
A.C.A. § 7-9-107(b).
Mr. David A. Couch
Ms. Jen Standerfer
Opinion No. 2023-123
Page 4

• First, the Attorney General may approve and certify the ballot title and popular name in the form they were submitted. 3
• Second, the Attorney General may “substitute and certify a more suitable and correct ballot title and popular name.” 4
• 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.” 5 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. 6

3. Rules governing the popular name & ballot title. The popular name is primarily a useful
   legislative device. 7 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. 8 And it must be considered together with the ballot title in determining the ballot title’s sufficiency. 9
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. 10 The Court has also disapproved the use of terms that are “technical and not readily understood by voters.” 11 Ballot titles that do not define such terms may be deemed insufficient. 12

3
A.C.A. § 7-9-107(d)(1).
4
Id.
5
A.C.A. § 7-9-107(e).
6
Id.
7
Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
8
E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 414–15, 316 S.W.2d 207, 208–09 (1958). 9 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
10
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
11
Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167 (citing Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)). 12 Id.
Mr. David A. Couch
Ms. Jen Standerfer
Opinion No. 2023-123
Page 5

Additionally, sponsors cannot omit material from the ballot title that qualifies as an “essential fact which would give the voter serious ground for reflection.” 13 Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot. 14 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. 15 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. 16 The ballot title must be honest and impartial, 17 and it must convey an intelligible idea of the scope and significance of a proposed change in the law. 18 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. 19 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.

5. Application. 20 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.

           o 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
   

   13
   Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
   14
   A.C.A. §§ 7-9-107(d)(2) (requiring the ballot title “submitted” to the Attorney General or “supplied by the Attorney General” to “briefly and concisely state the purpose the proposed measure”); 7-5-309(b)(1)(B) (allowing no more than ten minutes); see Bailey, 318 Ark. at 288, 884 S.W.2d at 944 (noting the connection between the measure’s length and the time limit in the voting booth). 15
   Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992).
   16
   Bailey, 318 Ark. at 284, 884 S.W.2d at 942 (internal citations omitted); see also Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 566 (1934) 17
   Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
   18
   Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994).
   19
   Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
   20
   The original version of this opinion mistakenly labeled this section “4.” This number has been corrected.
   Mr. David A. Couch
   Ms. Jen Standerfer
   Opinion No. 2023-123
   Page 6

          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.”
   
      o 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, I said, “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 explained that those rights “include the right
        to timely receive or inspect copies of nonexempt public records or to attend public
        meetings.” But no provision of the FOIA uses the term “government transparency.”
        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.” Since you have made no
        attempt to address this issue, I repeat what I said before: “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.”
   

• 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.
In Opinion No. 2023-113, I explained why this approach violates the full-text requirement.

   You have done nothing to resolve this issue. For example, a key provision in your current
   text, like the prior version of your text, prohibits the General Assembly from “enacting a
   law that diminishes public access to government” unless that law is enacted in a certain
   manner. You continue to define the phrase “diminishes public access to government” by
   reference to key terms in state statute without providing any definition of those terms. A
   law would “diminish public access to government” if it would make “a public process,
   public meeting, public notice, or public records less accessible or available to the people.”
   (Emphases added.) “Less accessible” than what? And what is meant by the terms “public
   process,” “public meeting,” “public notice,” or “public records”? Your text also states that
   a law “diminishes public access to government” when it “[m]odifies the legal standard for
   recovery of penalties, fees, expenses, or costs in any case concerning government
   transparency.” What “legal standard”? And “modifie[d]” from what? Other provisions of
   your proposal include similar references to a status quo being changed. But what status quo
   is being referred to? You are clearly trying to import an existing statutory standard into the
   constitution by implicit reference. This incorporation-by-reference violates the full-text
   requirement.

Mr. David A. Couch
Ms. Jen Standerfer
Opinion No. 2023-123
Page 7

       In Opinion No. 2023-113, I noted most of the foregoing issues. It seems you have either
       overlooked that portion of the prior opinion or chosen to disregard it. Therefore, I simply
       incorporate the analysis from Opinion No. 2023-113 on this point and reiterate what I said
       before:

                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.

   •   Disconnect between the ballot title and text. In an attempt to summarize your proposed
       text, your ballot title includes the following clause: “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.” I cannot find anything in the
       text of your proposed amendment that establishes such a requirement. Perhaps this
       language in the ballot title is an unintentional holdover from the first version of your
       proposal, which clearly did include that requirement. You summarized that requirement in
       the exact same language quoted above. On page eight of Opinion No. 2023-113, I noted
       that the requirement would seem to repeal all discretionary exemptions under the FOIA for
       meetings and records. The current version of your proposed text does not contain the earlier
       requirement. So it is possible that you removed the language from the text but forgot to
       remove it from the ballot title. It is also possible that you believe the requirement is
       established somewhere else in your proposed text, although not as explicitly as you did in
       your first proposal.

       Relying on the Arkansas Supreme Court’s decision in Roberts v. Priest, 21 my predecessors
       have called this situation—i.e., one in which a sponsor’s ballot title summarizes the
       measure’s text inaccurately—a “disconnect” between the measure’s text and ballot title. 22

21
Id. at 825, 20 S.W.3d at 382.
22
See, e.g., Ark. Att’y Gen. Ops. 2017-006, 2013-130, 2013-122, 2007-289, 2003-160, 2000-312.
Mr. David A. Couch
Ms. Jen Standerfer
Opinion No. 2023-123
Page 8

When presented with such a disconnect, every attorney general for at least 24 years has indicated that this disconnect prevented the attorney general from certifying the ballot title as submitted or from substituting and certifying a ballot title. I follow that decades-long practice here.

5. Recurring problems. Since the foregoing problems are grounded in the proposed text, and I
   am not authorized to modify the text of proposed measures, I cannot resolve the problems for you. Nevertheless, nearly all the problems I have identified in your current proposal are the same as the prior version. In good faith, I provided extensive reasoning in Opinion No. 2023-113 for why I rejected your prior version. For the statutory process under A.C.A. § 7-9-107 to be productive, sponsors should read the full opinions about their proposed measures and either address the issues noted or explain why they believe the opinion was mistaken. You have not attempted either one. Please ensure that legal infirmities raised in an opinion are addressed before resubmission.

I have noted your public comments that my earlier opinion focused too much on the text of your proposal rather than on the popular name and ballot title. Respectfully, this is mistaken. The review applied to your submissions, like the review applied to all submissions, is in accordance with the Court’s caselaw and A.C.A. § 7-9-107. By law, a ballot title is supposed to summarize the text. One cannot assess whether the summary is adequate without carefully reviewing the text. The mere fact that the ballot title is a verbatim copy of the text does not necessarily ensure that the ballot title is not misleading. The Court itself has noted that when the “text of the proposed amendment itself” is problematic, the ballot title and popular name cannot be certified. 23 The centrality of the proposed measure’s text is also the reason why my predecessors have rejected ballot titles over 100 times “due to ambiguities in the text” of the proposed measure.

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. 24

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

TIM GRIFFIN
Attorney General

23
Roberts, 341 Ark. at 825, 20 S.W.3d at 382.
24
A.C.A. § 7-9-107(e).