Why did the Arkansas AG reject the December 2023 Open Meetings and Open Records State and Local Government Amendment ballot title?

Plain-English summary

The sponsors submitted a revised proposed constitutional amendment with four popular names and ballot titles. Opinion 2023-124 addresses the submission labeled “BT 2,” titled “The Open Meetings and Open Records in State and Local Government Amendment.” The AG rejected its popular name and ballot title.

The AG identified three problems shared by the four submissions: unclear key terms, failure to resolve the absence of the measure's full text, and a lengthy ballot-title clause describing something absent from the text. He explained those problems in Opinion 2023-123 and incorporated that analysis here. He also incorporated the review standards set out in Opinion 2023-113.

The popular name, ballot title, and proposed amendment text are attached to the official opinion. The AG instructed the sponsors to redesign the measure, popular name, and ballot title under A.C.A. § 7-9-107(e).

What this means for you

Ballot initiative sponsors

This opinion asks the sponsors to revise the proposal and its title together. For the detailed explanation of the three shared problems, read Opinion 2023-123, which this opinion expressly incorporates. Check whether a ballot title describes a requirement that actually appears in the measure's current text.

Government transparency advocates

The attached text shows what the sponsors proposed in this BT-2 submission. The AG rejected the proposed popular name and ballot title and directed the sponsors to redesign them along with the measure.

Attorneys

The opinion identifies the three common grounds for rejection and points to Opinion 2023-123 for their analysis. It does not cite a court decision in its own discussion. Its statutory disposition is rejection and an instruction to redesign under A.C.A. § 7-9-107(e).

Common questions

What is BT-2?
It is the second of four popular names and ballot titles the sponsors submitted for their revised proposed amendment. The official opinion attaches this version's popular name, ballot title, and text.

Why did the AG reject it?
He listed unclear key terms, absence of the full text, and a ballot-title clause describing something not in the measure. He incorporated the analysis in Opinion 2023-123.

Could the AG substitute a corrected title?
The AG said the shared defects prevented him from certifying the submitted title or substituting and certifying a title. He instructed the sponsors to redesign the measure, popular name, and ballot title.

Citations

• A.C.A. § 7-9-107(e)
• Ark. Att'y Gen. Ops. 2023-113 and 2023-123 (incorporated by reference)

Source

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

Original opinion text

Opinion No. 2023-124
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.

Your four submissions have the same three problems: (1) the failure to resolve the issue with the lack of clarity in the measure’s key terms; (2) the failure to resolve the main issue noted in Opinion No. 2023-113 regarding the absence of the full text; and (3) a lengthy clause in your ballot title summarizing something that does not appear in your text. Since these three problems are common to all four submissions, I provide a single opinion today—Opinion No. 2023-123—to explain why those issues are problematic and why they prevent me from certifying your ballot title or substituting and certifying.

This opinion addresses what you have labeled “BT 2.” The popular name, ballot title, and text are attached. Opinion No. 2023-113 sets out the legal standards that govern my review and that govern whether popular names and ballot titles are misleading. Those standards are incorporated by reference into this opinion.

For the reasons identified and explained in Opinion No. 2023-123, which is incorporated by reference into this opinion, I must reject your proposed popular name and ballot title labeled “BT 2,” and instruct you to “redesign” your proposed constitutional amendment, popular name, and ballot title. 1

1
A.C.A. § 7-9-107(e).
Mr. David A. Couch
Ms. Jen Standerfer
Opinion No. 2023-124
Page 2

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

TIM GRIFFIN
Attorney General
ECEIVE
DEC 20 2023
DEC 99 RECO
l = ?TTOP NEY GENERA!
POPULAR NAME BY: cepa DAS THE OPEN MEETINGS AND OPEN RECORDS IN STATE AND LOCAL GOVERNMENT AMENDMENT

BALLOT TITLE
AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO CREATE THE ?OPEN MEETINGS AND OPEN RECORDS IN STATE AND LOCAL GOVERNMENT AMENDMENT?;

ESTABLISHING A RIGHT TO OPENNESS IN GOVERNMENT;

REQUIRING THAT PUBLIC OFFICERS C O N D U C T G O V E R N M E N T BUSINESS IN A M A N N E R THAT IS OPEN T O ARKANSANS IN ACCESS TO PUBLIC RECORDS, C O N D U C T OF PUBLIC MEETINGS, A N D ISSUANCE OF PUBLIC NOTICE;

PROHIBITING THE GENERAL ASSEMBLY FROM A M E N D I N G A L A W OR ENACTING
L A W TO D I M I N I S H PUBLIC ACCESS TO GOVERNMENT, BUT ALLOWING A T W O THIRDS MAJORITY OF THE GENERAL ASSEMBLY T O REFER THAT LAW T O THE PEOPLE TO BE APPROVED OR REJECTED AT THE NEXT GENERAL ELECTION;

PERMITTING THE GENERAL ASSEMBLY, BY A NINE TENTHS VOTE A N D IN THE CASE OF A N EMERGENCY, TO M A K E A REFERRED L A W TAKE I M M E D I A T E 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 ??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;

PROHIBITING THE GENERAL ASSEMBLY FROM REFERRING FUTURE AMENDMENTS TO THE OPEN MEETINGS AND OPEN RECORDS IN STATE AND LOCAL GOVERNMENT AMENDMENT TO THE PEOPLE UNDER ARTICLE 12, SECTION 22;

PRESERVING THE PEOPLE’S POWER TO AMEND THE OPEN MEETINGS AND OPEN RECORDS IN STATE AND LOCAL GOVERNMENT 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 OPENNESS 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.
Section 1. Policy, duties, rights, and interpretation.
(a) It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.
(b) Government transparency is a right of the citizens of Arkansas.

Section 2. Definition.
As used in this Amendment “government transparency” means the government’s obligation to share information with citizens.

Section 3. Procedure for enacting laws that diminish public access to government.
(a)(1)(A) The General Assembly shall not make a law that diminishes public access to government except as provided in this section.
(B) The General Assembly may propose an amendment or adoption that diminishes public access to government only by referring a bill adopted by a two thirds (2/3) majority vote of both the House of Representatives and the Senate to the electors at the next general election for approval or rejection of the bill.
(2) A bill “diminishes public access to government” if any provision of the bill:
(A) Makes a public process, public meeting, public notice, or public record less open, accessible, or available to the people;
(B) Modifies the legal standard for recovery of penalties, fees, expenses, or costs in any case concerning government transparency; or (C) Limits or restricts the recovery of penalties, fees, expenses, or costs by a citizen in any case concerning government transparency.
(3)(A) If it shall be necessary for the preservation of the public, peace, health, and safety that the bill become effective without delay, the General Assembly may declare an emergency by nine tenths (9/10) majority vote of both the House of Representatives and the Senate.
(B) If the emergency declaration is adopted:
(i) The bill shall become immediately effective; and (ii) If the electors reject the referred bill at the next general election, the referred bill will no longer be in effect.
(4) The referred bill shall be published in the manner prescribed under Arkansas Constitution, Article 19, § 22.

Page 1 of 3
(5) A referred bill under this subsection (b) is not a constitutional amendment under Arkansas Constitution, Article 19, § 22.
(6) As used in this section:
(A) A public process or public meeting is “less open, accessible, or available to the people” if the public’s access to view, hear, attend, obtain knowledge of, or engage in the public process or public meeting is reduced;
(B) Public notice is “less open, accessible, or available to the people” if:
(i) Any time, place, manner, term, or medium of public notice is removed or reduced; and
(C) A public record is “less open, accessible, or available to the people” if the amendment:
(i) Exempts any portion of the public record from disclosure;
(ii) Designates any portion of the public record to be confidential; or
(iii) Makes the process for requesting, obtaining, receiving, or viewing any portion of the public record more difficult, complicated, or expensive for the requester.
(b) The General Assembly shall not propose an amendment to this Amendment to be submitted to the people for approval or rejection under Arkansas Constitution, Article 19, § 22.
(c) The people may amend this Amendment or an Arkansas statute concerning government transparency as provided under Arkansas Constitution, Article 5, § 1 or as provided under this section.

Section 4. Immunity.
The State of Arkansas may be made a defendant in her courts for 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, manner, term, or medium of public notice.

Section 5. Inconsistent provisions inapplicable.
(a) Except as provided in subsection (b) of this section, 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.
(b) This amendment shall not be construed to alter the constitutional powers of the:
(1) State Supreme Court; or

Page 2 of 3
(2) General Assembly to determine the rules that affect the openness of state legislative meetings.

Section 6. Severability.
If any provision or section of this amendment or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provision or application of the amendment that can be given effect without the invalid provision or application, and to this end the provisions of this amendment are declared to be severable.

Section 7. Effective date.
This Amendment is effective on and after November 6, 2024.

Page 3 of 3