Brenda Blagg, FOIArkansas project

Enforcement of the Arkansas Freedom of Information Act begins at the ballot box.

Brenda Blagg

At least it should.

The lesson over time is that, while it is important to have a state law that gives people access to their government, it is more important to have people in power who believe in the law.

The way to make sure they do is for voters to choose representatives — the people who will make decisions for you and me — who really believe in letting the public participate in their government.

It’s pretty simple. If officials hold the fundamental belief that government ought to be open, it will be. If officials want to hide information or do business in secret, they probably can.

For that reason alone, it makes sense to screen candidates for office based on their belief in freedom of information. In fact, failure to pledge support for open government should be a disqualifier for a candidate at any level of government.

It is, after all, the public’s business these people are signing on to do. Elected officials — and the people they hire in their offices — ought to believe in giving people easy access to them and to anything that reflects how they do the public’s business.

Therein lies the link to the Arkansas FOI Act. Getting access to government is what the state’s “sunshine law” is all about. It is intended to give Arkansas citizens access to the records their governments keep and to the meetings at which their governments make decisions on the public’s behalf. The law doesn’t allow citizens access to all records or to all meetings, but most records and most meetings are supposed to be open under the FOI Act.

Not all officials understand that fact, as was illustrated in a recent statewide survey of selected government offices in each of the state’s 75 counties. The FOIArkansas Project found that one in three government offices failed to turn over what should have been public records when state citizens asked for them.

No one is going to file a lawsuit against those who failed the test and no one is going to swear out a warrant for their arrest, either of which could theoretically happen under the FOI Act.

The point of the survey was to find out whether officials would follow the law and to encourage future compliance by all Arkansas officials.

When officials do fail to meet their responsibility under the law, citizens have some recourse, although limited. The law provides legal remedies to citizens, although pursuing them can be costly or difficult.

The options are to bring a civil lawsuit or to seek criminal charges against an offending officeholder or governing board. Both options have been used and should be pursued in the most egregious situations, but neither is without difficulty.

Few prosecutors, for example, would be willing to bring criminal charges against local officeholders. Even if they do and are successful, the result won’t undo the damage done to a citizen who is denied access to a record or to a meeting.

The same is true of civil litigation. While such cases are supposed to be expedited on a court’s docket, such a lawsuit won’t immediately remedy any FOI situation.

A citizen obviously can’t get access to a secret meeting that is long over. It’s like trying to unring a bell. The damage is done. A lawsuit can point out the error of a given governing body’s action and set a standard for future compliance by other governing boards. However, it won’t get a citizen into a meeting he or she missed.

Similarly, filing a lawsuit won’t put a record in a citizen’s hands quickly. Access to the record he or she needed yesterday will be days or weeks or months away if the matter has to be resolved in court.

Such situations fly in the face of the Arkansas General Assembly’s stated intent when it adopted the FOI Act in 1967:

“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....”

There always will be differences of opinion on which records or meetings should be open to the public, but there will be fewer of those arguments and less need to sue or to bring criminal charges if those who are elected to office are chosen because they hold a fundamental belief in public access to government.

While enforcement provisions are essential to the FOI Act, compliance with the FOI law is — from a practical standpoint — largely an act of conscience.