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Changes may be in store for the Arkansas Freedom of Information Act in 2001, but it’s too early to guess what kind.

Access to electronic records and additional enforcement options are two issues that could be addressed by lawmakers in the next biennial legislative session.

The Arkansas General Assembly’s next regularly scheduled meeting begins in January 2001. Lawmakers expect to hear recommendations then from a newly appointed Electronic Records Study Commission. The commission, which began meeting in August, is to offer proposals, if needed, to deal with access to public records stored on computers.

Electronic records are already covered in the law because the FOI Act refers to “data compilation in any form” in the definition of a public record. However, the law was written at a time when computers were not a standard method of storing public records and the law does not specifically address issues like electronic mail communication.

The FOIArkansas Project, which conducted a six-part survey to test compliance with the open records portion of the state FOI Act, included one survey by e-mail.

The e-mail request sought gender and race breakdowns of staff members and enrollment at public universities, but the method proved unreliable for securing information. One of 12 universities surveyed — Arkansas State University at Jonesboro — sent the information by return e-mail following the first request.

The FOIArkansas Project also included a walk-in survey of four offices in each of Arkansas’ 75 counties and a survey by traditional mail of county clerks. About two in three offices surveyed in the walk-in test provided documents initially. More than three out of four county clerks answered the mail survey.

Under existing law, citizens who believe a public official or public board or commission in Arkansas is not living up to its obligation under the FOI Act have two options for enforcement: They can file a civil lawsuit or lodge a criminal complaint with the local prosecutor, who can file misdemeanor charges.

Complaints of FOI Act violations often have a low priority with prosecutors when it comes to taking a case to trial. Charges rarely are filed, and when they are, they almost always are settled before going to court. Average citizens often are reluctant to file civil lawsuits in FOI cases because of the expense of hiring attorneys and paying court costs.

Rep. Shane Broadway, D-Bryant, the speaker-elect of the House of Representatives, and Sen. Mike Beebe, D-Searcy, the president pro tempore-designate for 2001, said in separate interviews that the possibility of some type of intermediate enforcement option needs to be studied.

The attorney general’s office can provide advice on compliance, but it has no enforcement mechanism.

In Connecticut, an FOI Commission with quasi-judicial powers is the first enforcement option for FOI complaints. The commission has the authority to conduct hearings, make findings based on evidence and issue fines. Either side can appeal the findings to a circuit court.

Broadway and Beebe said they plan to ask their colleagues to study the issue before the 2001 session to determine if a commission or some other intermediate enforcement option is needed.

“Rather than set up a separate bureaucracy, it might be better to give (the attorney general’s office) some fining authority, from which either side could have due process,” Beebe said. “I think the attorneys general of our state have been pro-FOI in terms of the liberal construction; the track record has been pretty good.”

Attorney General Mark Pryor said his office would like to be invited to participate with lawmakers if an interim study is done. He said he has some reservations about the due-process issue of fining FOI violators, but expressed interest in any option that would provide intermediate sanctions.

“I’m open to any proposal that would increase access to records,” he said.

Gov. Mike Huckabee said he would be reluctant to support the establishment of a commission on FOI issues but would favor giving the attorney general’s office some oversight.

Arkansas has one quasi-judicial commission — the state Ethics Commission — and Huckabee said he would be “adamantly opposed” to giving that panel any additional authority, including over FOI complaints.

“That would be a disaster,” the governor said, adding that the Ethics Commission is far too political.

The Freedom of Information Act is a public-interest law and should never be used as a political weapon, the governor said.

The FOI Commission in Connecticut attempts, through an attorney ombudsman, to resolve quickly disputes related to records and public meetings . If that fails, either side can request a timely hearing.

The commission handled 558 formal complaints in 1998 and resolved 556 of them. The ombudsman settled 175 cases, 220 resulted in hearings and the rest were dismissed before they went to a hearing, according to commission records.

In the cases that went to a hearing, the commission found against public agencies or officials about half the time; the others were dismissed.

The commission can issue fines of up to $1,000.

In Arkansas, anyone found guilty of criminal violations can be fined up to $200 and be sentenced to up to 30 days in jail, but any finding occurs well after alleged violations.

Journalists in Arkansas traditionally have been reluctant to open the 1967 law to any amendments for fear that it will inadvertently be weakened.

Some believe the law suffered when a commission that included journalists recommended changes designed to protect the privacy of public employees.

The law was amended to exempt from public disclosure personnel records “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

The change required that employee evaluations or job performance records be open when the records form a basis for a decision to suspend or terminate an employee and if there is “a compelling public interest” in their disclosure. Journalists complain that the amendment cuts off access to some performance records and sets up a cumbersome process for determining which records should be open.

Bob McCord, an independent journalist who worked for passage of the 1967 FOI Act, said he would like to see tougher enforcement in Arkansas, however not all journalists would favor opening the law to add intermediate sanctions.

Carol Griffee, an independent journalist and member of the FOI Coalition, said public officials have resisted the law since its passage and new enforcement options probably would not change that. The FOI Coalition is a loosely organized group of journalists who monitor FOI-related issues.

“It's a myth that we will have a law and everybody will comply,” Griffee said. “We just need to remain vigilant and do what we can, but we're not going to have a perfect world.”

Intermediate sanctions potentially could make it more difficult for officials to violate the act, according to Sen. Beebe.

“You might want a per-day fine that could be imposed or per-hour fine that could be imposed from and after notice by the commission or AG ... designed to elicit a more favorable and timely response,” Beebe said.

Safeguards would have to be built in to allow for judicial appeal of any intermediate sanction, he said.

Huckabee said the AG’s office perhaps could staff a FOI hotline during the hours that complaints most likely would come in — maybe 7 a.m. to 10 p.m., — then could forward calls if there are after-hour complaints over access, for example, to jail records or late-night meetings.

Failure to follow advice offered by the AG’s office potentially could result in some sort of sanction, Huckabee said.

Broadway also had some concern over political implications of forming a commission to deal with FOI complaints. He said it would require considerable study. For example, deciding how appointments would be made would be very important, he said.

The speaker-elect said he planned to look at laws in other states to find out how well commissions work and whether other state attorneys general have authority to issue fines in similar situations.

“It’s something worth studying; it’s important for the public to be able to know what’s going on in their government,” Broadway said. “I believe that is a fundamental part of this democracy ...

“We need to start looking at it now while we’ve got a year and a half, instead of waiting until the session and saying ‘here’s a bill,’” Broadway said.

Brenda Blagg is a reporter at The Morning News of Northwest Arkansas. Her telephone number is (501) 872-5194 and her e-mail address is bblagg@nwaonline.news