Why did the Arkansas AG reject the December 2023 Government Transparency Act ballot title?
Plain-English summary
This is the December 2023 BT-1 submission of the proposed "Arkansas Government Transparency Act," the precursor to the version eventually certified in Opinion 2024-020. The AG rejected this version because the proposed text would have unintentionally curtailed existing FOIA notification rights for public employees, but the ballot title described the change as protecting privacy.
Specifically:
Current law (A.C.A. § 25-19-105(c)(3)(A)). When someone files a FOIA request for a public employee's personnel or evaluation records, the custodian must notify the employee. The employee can then seek an AG opinion on the custodian's release decision under § 25-19-105(c)(3)(B)(i).
The proposal's Section 4. Would amend § 25-19-105(c)(2) to add personnel/evaluation records to the records made "available to the person about whom the records are maintained or to that person's designated representative." Then it would amend § 25-19-105(c)(3)(A) to restrict the notification requirement to situations where the requester is the person about whom the records are maintained.
The unintended consequence. Under the proposal, the only person entitled to notification of a FOIA request for personnel records would be the person making the request (since they would be requesting their own records). This eliminates the existing rights of public employees to be notified that someone else is requesting their records. The ability to seek an AG opinion would be similarly restricted, available only when you request your own records.
The "disconnect." The ballot title summarized the change as: "To Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual has a Substantial Personal Privacy Interest." This describes a privacy expansion. The actual text would have substantially curtailed existing privacy-related procedural rights. The summary does not match what the text does.
The AG invoked Roberts v. Priest's "disconnect" doctrine. When the text and the ballot title summary do not match, the AG cannot certify the title as submitted (because it is misleading) and cannot substitute and certify a different title (because any accurate title would summarize a measure that the sponsors did not actually intend). Only sponsor redrafting can fix it.
The AG also flagged a typographical issue: the ballot title repeated the same clause twice ("To Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual has a Substantial Personal Privacy Interest" appeared twice in succession). The repetition was clearly an oversight, not a substantive feature. The AG also encouraged the sponsors to "carefully review your proposed ballot title, which is replete with typographical errors."
What this means for you
Ballot initiative sponsors
The Roberts v. Priest "disconnect" doctrine is the killer rule for measure drafting. If your text and your ballot title summary do not match, you have a structural defect that no amount of substitution can cure. The AG can only fix the title, not the text. If your text does the opposite of what your title summarizes, the AG must reject.
This opinion is a clean illustration of how a well-intentioned drafting choice can backfire. The sponsors apparently wanted to extend personnel-record-style privacy protections to private citizens whose information appears in government records. To do that cleanly, they would have created a separate procedural framework. Instead, they tried to amend existing § 25-19-105(c) to do double duty (cover both public employees and private citizens), and the result was that public employees lost notification rights.
The drafting fix in the certified version (Opinion 2024-020) was simpler: add a "substantial personal privacy interest" exemption without disturbing the existing personnel-records procedural framework. The notification rules for public employees were left alone.
Government transparency advocates
If you support the broader transparency reforms in this proposal but were concerned about the personnel-records carve-out, the rejection helps. The certified version (Opinion 2024-020) preserved the substantive transparency reforms (three-day disclosure, civil penalties, attorney's fees, the new Commission) while removing the problematic personnel-records language. The certified version is what would have been on the November 2024 ballot if signature collection succeeded.
Public employees
Under existing Arkansas FOIA, you have a right to be notified when someone requests your personnel records and to seek an AG opinion on the custodian's release decision (A.C.A. § 25-19-105(c)(3)). The proposal in this opinion would have substantially curtailed those rights. The AG's rejection (and the sponsors' subsequent redrafting) preserved them.
FOIA attorneys
This opinion is useful for two distinct propositions:
First, the Roberts v. Priest text-summary disconnect doctrine is the structural reason the AG cannot certify defective measures even when the AG could otherwise substitute a title. Cite this opinion (and 2023-123) as recent applications.
Second, the personnel-records procedural framework in § 25-19-105(c)(3) is foundational. Any drafting that touches it needs to preserve the public-employee notification right and the AG-opinion right, or the drafter has to explicitly explain in the ballot title that those rights are being curtailed (which would make the measure considerably harder to pass).
Common questions
What was the sponsors' apparent intent?
To extend personnel-record-style privacy protections to private citizens whose personal information appears in government records (e.g., names in property tax records, court filings, or other government databases). The drafting tried to do this by reusing the existing § 25-19-105(c) framework, which was the source of the unintended consequence.
What is the "disconnect" doctrine?
From Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). When the text of a proposed measure does not match what the ballot title says it does, the title is misleading by omission or amplification. The AG cannot certify a measure with a disconnect because the title would not give voters a fair understanding of what they would be voting on.
How was this version different from the certified version (2024-020)?
The personnel-records carve-out approach. This version (2023-127) tried to amend existing § 25-19-105(c) to extend procedural rights to private citizens, with the unintended consequence of curtailing them for public employees. The certified version (2024-020) used a simpler "substantial personal privacy interest" exemption that did not touch the existing notification framework.
Were there other defects?
Yes. The opinion addresses only the personnel-records disconnect because that issue alone was sufficient for rejection. The opinion also flagged numerous typographical errors and the parallel preemptive-repeal clause that appears in 2024-009's analysis. Those would have been independent grounds for rejection in later submissions.
Background and statutory framework
A.C.A. § 7-9-107. AG review framework, including subsection (e)'s rejection authority.
A.C.A. § 25-19-105(c)(3)(A). Existing notification requirement for personnel records.
A.C.A. § 25-19-105(c)(3)(B)(i). Existing AG-opinion authority for personnel-record release decisions.
Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). Text-and-ballot-title disconnect doctrine.
Standard ballot-title sufficiency framework. Becker v. Riviere, Bailey v. McCuen, Plugge v. McCuen, May v. Daniels, Wilson v. Martin, and related cases.
Subsequent certified version. Opinion 2024-020 certified the revised act after the personnel-records carve-out was simplified.
Citations
- A.C.A. § 7-9-107 (review framework)
- A.C.A. § 25-19-105(b)(12) (personnel-records exception)
- A.C.A. § 25-19-105(c)(2) (records available to subject)
- A.C.A. § 25-19-105(c)(3)(A) (notification requirement)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion authority)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
- Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
- Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
- May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
- Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
- Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
- Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
- Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
- Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)
- Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
- Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
- Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 566 (1934)
- Ark. Att'y Gen. Ops. 2023-116, 2024-009, 2024-020 (related opinions)
Source
Original opinion text
Opinion No. 2023-127
January 9, 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 initiated act. On December 18, 2023, in Opinion No. 2023-116, I addressed a prior version of your proposed initiated act. 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.
- 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 Act.
Ballot Title
An Initiated Measure Amendment [sic] the [sic] 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, To Protect Citizens' Privacy Interests, and To Ensure the Government Shares Information with the Public Freely; To Require That Public Meetings be Conducted in a Manner that Allows the Public to Attend and Hear the Governing Body's Meaningful Discussion and Deliberation on Official Business; To Require Governing Body's [sic] to Publish Notice of Meetings; 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", "Government Transparency", "Minority Party", 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 Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual Has a Substantial Personal Privacy Interest; [sic] 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 of 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 One (1) or More Members 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 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 the Commission Finds that Confidentiality is Essential to the Ongoing Security Service; To Provide for the Qualifications, Procedures, Funding, Authority, and Functions of the Arkansas Government Transparency Commission; To Establish the Arkansas Government Transparency Commission With Five (5) Members Appointed by the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Minority Leader of the Senate, the Minority Leader of the House of Representatives, and the Lieutenant Governor; To Provide an Appellate Process for Review of Decisions Made by the Arkansas Government 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; And To Provide That the Provisions of the Act are Severable.
- 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:
- First, the Attorney General may approve and certify the ballot title and popular name in the form they were submitted.
- Second, the Attorney General may "substitute and certify a more suitable and correct ballot title and popular name."
- 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." 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.
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Rules governing the popular name & ballot title. The popular name is primarily a useful legislative device. 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. And it must be considered together with the ballot title in determining the ballot title's sufficiency.
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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. The Court has also disapproved the use of terms that are "technical and not readily understood by voters." Ballot titles that do not define such terms may be deemed insufficient.
Additionally, sponsors cannot omit material from the ballot title that qualifies as an "essential fact which would give the voter serious ground for reflection." Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot. 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. 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. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.
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. 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.
- 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 problem.
The current version of your proposed text, like the prior version addressed in Opinion No. 2023-116, would create an exemption from the FOIA's disclosure requirements for certain records of private citizens. Under the FOIA as it exists today, a public record that qualifies as a personnel record of a public official or employee is exempt from disclosure only when its disclosure would constitute a "clearly unwarranted invasion of personal privacy." The earlier version of Section 4 of your proposal would have applied that test to the disclosure of private citizens' information that finds its way into government records. In Opinion No. 2023-116, I noted that the earlier version of Section 4 was ambiguous in two ways. You have now resolved this specific issue, but you have done so in a way that creates a new law that is almost certainly not your intent and that is in conflict with your ballot title's summary.
Currently, under A.C.A. § 25-19-105(c)(3)(A), any public employee whose employment-related records are sought under the FOIA must be notified of that request. After the custodian notifies the employee (or former employee) of the request, the employee may seek an opinion from the Attorney General about whether the custodian's decision regarding the disclosure of those employment-related records is consistent with the FOIA.
Your prior and current versions of this section were clearly an attempt to expand the existing rules by affording private citizens the rights that are available to public employees. But your text actually radically curtails the rules as they apply to public employees. Section 3 of your proposal would amend A.C.A. § 25-19-105(b)(12) to create a general privacy right for citizens' personal information that finds its way into documents that are unrelated to the citizens' government employment (or lack thereof). Under current law, the custodian of the records must notify someone whose personnel records are requested under the FOIA. After being notified, the person may seek an Attorney General's opinion about whether the custodian's decision is consistent with the FOIA.
Section 4 of your proposal would restrict the notification requirement and the ability to seek an opinion to situations in which the requester is the person about whom the records are maintained. Section 4 amends A.C.A. § 25-19-105(c)(2) as follows (the underlined language appears in your text and would be added to the statute):
Any personnel or evaluation records exempt from disclosure under this chapter or other records exempt from disclosure under subdivision (b)(12) shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative.
Section 4 goes on to restrict the notification requirement to situations in which the custodian as received a request from someone seeking their own records (the underlines and strikethroughs are part of your text):
(3)(A) Except as stated under subdivision (c)(4) of this section, upon receiving a request for the examination or copying of personnel or evaluation records under subdivision (c)(2) of this section, the custodian shall determine…whether the records are exempt from disclosure and make efforts to the fullest extent possible to notify…the subject of the records of that decision, or his or her next of kin if the subject is deceased.
The phrase "records under subdivision (c)(2) of this section" refers to "personnel or evaluation records" or "other records exempt from disclosure under (b)(12)" being made available "to the person about whom the records are maintained." This would remove the general notification requirement for personnel or employee-evaluation records and restrict it to situations in which the requester is the subject of the records. But this is illogical because the person who would need to be notified is the very person seeking the records. Any attempt to summarize this in the ballot title is circular reasoning and, therefore, misleading. A similar restriction regarding seeking an Attorney General's opinion is also created by subdivision (c)(3)(B)(i) of Section 4.
These significant changes in law are inconsistent with the way your ballot title tries to summarize them. Your ballot title contains the following summary, which I have reproduced exactly as it appears:
To Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual has a Substantial Personal Privacy Interest;
To Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual Has a Substantial Personal Privacy Interest;
Aside from the repetition, which appears to be an oversight, the language does not come close to capturing the significant changes in the law that your text would create. As drafted, a public employee's ability to be notified that someone might obtain their information is almost entirely taken away. And the private citizen would only receive notice if he or she were the one requesting the information. These two results are not consistent with the way you have summarized the measure. Relying on the Arkansas Supreme Court's decision in Roberts v. Priest, 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. 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.
- Conclusion. 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 initiated act, popular name, and ballot title. I also (1) incorporate Opinion No. 2023-116's analysis regarding your popular name and (2) encourage you to carefully review your proposed ballot title, which is replete with typographical errors.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General