Why did the Arkansas AG reject the Arkansas Government Openness Act ballot title in January 2024?
Plain-English summary
This is the third of three parallel rejection opinions (with 2024-009 and 2024-011) for the same initiated act submitted under different popular names. The submitted name here was "The Arkansas Government Openness Act." The text of the proposed act, including the rejected preemptive-repeal clause, was identical to the versions reviewed in 2024-009 and 2024-011.
The AG rejected the popular name and ballot title for the same reason: the act's "preemptive repeal" clause would purport to repeal any 2024 General Assembly law that "reduces government transparency." That clause is outside the initiative power under Amendment 7 and violates the full-text requirement.
The full reasoning is in Opinion 2024-009. The sponsors removed the offending clause and resubmitted; Opinion 2024-020 certified the revised act as "Arkansas Government Disclosure Act of 2024."
What this means for you
Ballot initiative sponsors
Filing parallel popular names does not give you parallel chances to clear certification when the underlying text has the same defect. The AG reads parallel submissions as a single proposal and applies the same legal analysis to each.
The fix is in the text, not the name. Redrafting the act to drop the preemptive-repeal clause is what enables certification, and the sponsors here did exactly that in their next submission.
Government transparency advocates
The Government Openness Act, the Government Disclosure Act, and the Government Transparency Act in this batch of rejections were three names for the same proposed law. The substantive transparency reforms (the Transparency Commission, three-day deadline, civil penalties, attorney's fees, definition changes for "public meeting" and "public notice") were preserved through the redesign and certified in Opinion 2024-020.
Attorneys
When sponsors file parallel submissions and you need to cite the underlying analysis, cite 2024-009. Opinions 2024-011 and 2024-012 are pendant opinions that incorporate 2024-009 by reference.
Common questions
Why didn't the AG just consolidate the four submissions?
Each submission required a separate response under § 7-9-107. The AG addresses each submitted popular name and ballot title individually because the sponsor could, in theory, have submitted the same text with four different names that warrant different treatment. Here, the analysis was the same across all four.
What happened to the fourth parallel submission?
The opinions listed in the AG's monthly index include a fourth opinion in the same batch. The current corpus has 2024-009, 2024-011, and 2024-012 documented; the fourth submission's opinion would follow the same pattern.
Where are the substantive transparency reforms now?
They are in the certified "Arkansas Government Disclosure Act of 2024" reviewed in Opinion 2024-020. The reforms cleared the AG's certification once the preemptive-repeal clause was removed.
Background and statutory framework
See Opinion 2024-009 for the full preemptive-repeal analysis.
A.C.A. § 7-9-107(e). Mandates rejection when a measure or its ballot title is misleading; requires the AG to instruct the sponsor to redesign.
Citations
- A.C.A. § 7-9-107(e)
- Ark. Att'y Gen. Op. 2024-009 (full analysis, incorporated by reference)
- Ark. Att'y Gen. Ops. 2024-011, 2024-020 (parallel rejection and subsequent certification)
Source
Original opinion text
Opinion No. 2024-012
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 Openness Act.
Ballot Title
An Initiated Measure Amending the Arkansas Code to Create the "Arkansas Government Openness 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.
-
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.
-
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