Why did the Arkansas AG reject the December 2023 Open Meetings and Open Records State and Local Government Amendment ballot title?
Plain-English summary
This is one of four parallel rejection opinions (BT-1, BT-2, BT-3, BT-4) issued in early January 2024 for an earlier version of what eventually became the certified Arkansas Government Disclosure Amendment of 2024 (Opinion 2024-005). The sponsors had submitted four parallel popular names and ballot titles for the same proposed constitutional amendment.
The full reasoning is in Opinion 2023-123 (which addresses BT-1 and is incorporated by reference into this opinion). The three problems common to all four submissions:
1. Key terms unclear. The proposed amendment used the term "diminishes public access to government" with multiple cross-cutting definitions ("less open, accessible, or available to the people," covering public processes, public meetings, public notices, and public records each in different ways). The term and its definitions did not align cleanly enough for voters to understand what the amendment would do.
2. Full-text requirement. Like the later transparency-act submissions (Opinion 2024-009), this version had drafting issues that prevented voters from seeing the "full text" of what they were voting on.
3. Ballot-title summary of nonexistent text. A lengthy clause in the ballot title summarized something that did not actually appear in the measure's text. This is a classic disconnect-between-text-and-summary problem under Roberts v. Priest, which prevents both certification as submitted and substitution by the AG.
The sponsors continued revising. Their next round of submissions (Opinions 2024-005, 2024-006, 2024-007, 2024-008) cured the defects, and the amendment was certified for circulation.
The full text of the rejected version (the actual Section 1 through Section 7 of the proposed amendment) is reproduced in the opinion. It establishes government transparency as a "right of the citizens of Arkansas," defines transparency as "the government's obligation to share information with citizens," and creates the multi-tiered legislative-protection scheme that survived through to the certified version.
What this means for you
Ballot initiative sponsors
This early-rejection opinion is useful as a snapshot of what NOT to do. The text-and-summary disconnect is particularly damaging because it cannot be cured by AG substitution; only sponsor redrafting can fix it. When you draft a complex amendment with multiple cross-cutting definitions, run a sanity check: does every clause in the ballot title match a specific clause in the text? If not, fix the disconnect before submission.
The sponsors' iterative process (Opinion 2023-113 → 2023-123 → 2023-124 → 2024-005 → certification) shows the typical timeline for a complex initiated measure. Plan for multiple rejection-revision rounds.
Government transparency advocates
The Section 1 through Section 7 text in this opinion's appendix is the early version of what eventually became the certified Open Meetings and Open Records / Government Disclosure Amendment of 2024. Reading both gives you a sense of how the proposal evolved: the early version focused on "diminishes public access to government" as the operative phrase; the certified version uses "concerning government transparency." The certified version is cleaner and tracks the simpler "transparency" framing.
Attorneys
The Roberts v. Priest "disconnect" doctrine (text and ballot title must match) is the structural reason the AG cannot substitute his way out of a defective measure. Cite this opinion (and 2023-123) when explaining to clients why they have to redraft, not just resubmit.
Common questions
What is BT-2?
Sponsors labeled their four parallel submissions BT-1 through BT-4. This opinion addresses BT-2. Opinions 2023-123 (BT-1), 2023-125 or thereabouts (BT-3), and 2023-126 or thereabouts (BT-4) handle the others.
Why did the AG issue separate opinions for each parallel submission?
Each submission required its own statutory response under § 7-9-107. The AG opted for a single substantive opinion (2023-123) addressing the common issues, with the others incorporating that analysis by reference.
What was wrong with "diminishes public access to government"?
The phrase was defined at multiple levels with cross-cutting categories (public processes vs. public meetings vs. public notices vs. public records), each with its own sub-definition. The combined definitional structure was not clear enough to summarize accurately in a ballot title.
Background and statutory framework
See Opinion 2023-123 for the full reasoning, incorporated here.
A.C.A. § 7-9-107(e). Mandates rejection when a ballot title is misleading; instructs sponsor to redesign measure, popular name, and ballot title.
Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). Text-and-ballot-title disconnect prevents AG certification.
Subsequent certifications. Opinions 2024-005, 2024-006, 2024-007, 2024-008 certified the revised amendment.
Citations
- A.C.A. § 7-9-107(e)
- Ark. Att'y Gen. Op. 2023-123 (full reasoning, incorporated by reference)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (text-summary disconnect doctrine)
- Ark. Att'y Gen. Ops. 2024-005, 2024-006, 2024-007, 2024-008 (certified versions of the same amendment)
Source
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.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
POPULAR NAME
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 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 "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 ANYTIME, 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.
(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
(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.