Why did the Arkansas AG reject the second version of the Arkansas Government Transparency Act ballot title?
Plain-English summary
This is a separate later submission of the "Arkansas Government Transparency Act" using the same name as Opinion 2024-009 but a slightly different text. This version includes a "Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual has a Substantial Personal Privacy Interest" provision (carried over from earlier rejections in Opinion 2023-127) along with the preemptive-repeal clause.
The AG rejected the popular name and ballot title for the same reason given in Opinion 2024-009: the preemptive-repeal clause is outside the initiative power and violates the full-text requirement.
The sponsors ultimately removed both the preemptive-repeal clause and the personnel-records carve-out from the version certified in Opinion 2024-020.
What this means for you
Ballot initiative sponsors
When you carry over text from one rejected submission to a new submission, expect the AG to apply the same analysis and reach the same result. Submitting "almost the same act with one different name" is a procedural workaround that does not address the underlying defect.
Government transparency advocates
The "substantial personal privacy interest" provision in this version (and in Opinion 2023-127's text) was an attempt to extend personal-privacy protections to private citizens whose information appears in government records. As the AG explained in Opinion 2023-127, the drafting actually had the unintended effect of curtailing existing notification rights for public employees. The certified version in Opinion 2024-020 dropped that approach in favor of a simpler "substantial personal privacy interest" exemption that the AG could fairly summarize in a ballot title.
Common questions
What is the difference between Opinions 2024-009 and 2024-013?
Both reject submissions of the same act. 2024-009 was one of four parallel rejections issued together. 2024-013 was a separate submission filed in between, with slightly different text including the personnel-records carve-out.
Why was the personnel-records carve-out problematic?
See Opinion 2023-127 for the full analysis. In summary, the way the sponsors drafted the carve-out actually restricted existing public-employee notification rights instead of expanding them, and the ballot title's summary did not match what the text actually did.
Background and statutory framework
See Opinion 2024-009 for the preemptive-repeal analysis and Opinion 2023-127 for the personnel-records carve-out analysis.
Citations
- A.C.A. § 7-9-107(e)
- Ark. Att'y Gen. Ops. 2024-009, 2023-127 (incorporated analyses)
- Ark. Att'y Gen. Op. 2024-020 (certified version)
Source
Original opinion text
Opinion No. 2024-013
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 for review.
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 Amending the 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 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 Protect the Privacy of Personal Information Contained Within Public Records in Which an Individual has a Substantial Personal Privacy Interest; 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 Attorney's 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