Why did the Arkansas AG reject the Arkansas Government Disclosure Act ballot title in January 2024?
Plain-English summary
This is one of three parallel rejection opinions issued the same day. Couch and Standerfer submitted four versions of the same initiated act under different popular names ("Government Transparency Act" in 2024-009, "Government Disclosure Act" here, and "Government Openness Act" in 2024-012). The AG rejected all of them on the same single basis: a "preemptive repeal" clause that would automatically void any 2024 General Assembly law "reducing government transparency" if the people later adopted the initiated act.
The AG's reasoning is fully set out in Opinion 2024-009 and incorporated here by reference. In short:
- Outside the initiative power. Amendment 7 lets voters create new law and repeal existing law. It does not let voters repeal laws that do not yet exist.
- Full-text violation. The set of laws subject to the preemptive repeal would be fluid right up to the day of the vote, so the "full text" of what voters were repealing could not be shown to them.
Because the defect was in the text of the proposed measure (not just the ballot title), the AG could not fix it by substitution. The sponsors had to remove the preemptive-repeal clause and resubmit. They did, and the revised act was certified as "Arkansas Government Disclosure Act of 2024" in Opinion 2024-020.
What this means for you
Ballot initiative sponsors
The same lessons as Opinion 2024-009 apply. Briefly: do not include preemptive-repeal language in an initiated act; the AG cannot rewrite measure text by substitution; and the full-text requirement bars incorporation by reference of fluid bodies of law.
If you are submitting parallel versions of the same measure under different names, expect identical AG treatment for identical structural defects. Submitting four versions does not give you four chances to slip through; the AG reads them as a single proposal with a single text.
Government transparency advocates
The non-rejected provisions of the act, including the new Government Transparency Commission, the three-day disclosure clock, civil penalties, and attorney's fees recovery, were not the basis for rejection. Sponsors needed only to drop the preemptive-repeal language to clear certification.
Attorneys
This opinion's three-paragraph "Application" section is unusually short because it incorporates Opinion 2024-009's reasoning by reference. Cite 2024-009 (not this one) when you need the AG's full preemptive-repeal analysis.
Common questions
Why are there three nearly identical rejection opinions?
Because the sponsors submitted three (actually four; the fourth is Opinion 2024-012) parallel popular names with parallel ballot titles. The AG had to issue separate opinions on each submission, even when the legal analysis was identical.
Did the sponsors save time by filing parallel submissions?
No. They received parallel rejections. The path forward was the same: revise the text of the act and resubmit. The revised version was certified in Opinion 2024-020.
Is there any difference between this opinion and 2024-009?
Only the popular name submitted by the sponsors. Everything else (the legal analysis, the rejected provision, the instruction to redesign) is the same.
Background and statutory framework
See Opinion 2024-009 for the full preemptive-repeal and full-text analysis.
A.C.A. § 7-9-107(e). Authorizes the AG to reject a popular name and ballot title and instruct the sponsor to redesign.
Subsequent certified version. Opinion 2024-020 certified the revised act after the sponsors removed the preemptive-repeal clause.
Citations
- A.C.A. § 7-9-107(e) (rejection with reasons)
- Ark. Att'y Gen. Op. 2024-009 (full preemptive-repeal analysis, incorporated here)
- Ark. Att'y Gen. Ops. 2023-113, 2023-116, 2023-127, 2024-020 (related opinions)
Source
Original opinion text
Opinion No. 2024-011
January 25, 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. In Opinion Nos. 2023-116 and 2023-127, I addressed prior versions 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.
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 Disclosure Act.
Ballot Title
An Initiated Measure Amending the Arkansas Code to Create the "Arkansas Government Disclosure 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 Bodies 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 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.
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Rules governing my review. In Opinion No. 2023-116, I explained the rules governing popular names and ballot, and the rules governing my review of proposed measures. Rather than repeat those explanations, I incorporate them my reference.
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Application. Having reviewed the text of your proposed initiated act, as well as your proposed popular name and ballot title, my statutory duty is to reject your popular name and ballot title due to a misleading provision of your text that is also summarized in your proposed ballot title. My analysis of that issue can be found in Opinion No. 2024-009, which is incorporated here by reference. For the reasons explained in that opinion, my 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