Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas Call Item 4
2 94th General Assembly A Bill
3 First Extraordinary Session, 2023 HOUSE BILL 1003
4
5 By: Representatives Ray, M. Shepherd, Achor, Andrews, Barker, Beaty Jr., Beck, Bentley, M. Berry,
6 Breaux, Brooks, K. Brown, Burkes, Eubanks, Evans, C. Fite, Fortner, Gazaway, Gramlich, Haak, D.
7 Hodges, G. Hodges, Holcomb, Hollowell, L. Johnson, Lundstrum, Maddox, McCollum, B. McKenzie,
8 Painter, Pilkington, R. Scott Richardson, Richmond, Rose, Rye, Tosh, Underwood, Unger, Wardlaw,
9 Watson
10 By: Senators Flippo, J. Boyd, Crowell, B. Davis, Dees, J. Dismang, J. English, Gilmore, K. Hammer,
11 Hester, Hill, Irvin, B. Johnson, M. McKee, J. Petty, Rice, Stone, D. Wallace
12
13 For An Act To Be Entitled
14 AN ACT TO AMEND THE FREEDOM OF INFORMATION ACT OF
15 1967; TO EXEMPT CERTAIN RECORDS FROM DISCLOSURE UNDER
16 THE FREEDOM OF INFORMATION ACT OF 1967, INCLUDING
17 CERTAIN SECURITY-RELATED RECORDS, RECORDS THAT REVEAL
18 THE DELIBERATIVE PROCESS OF SPECIFIC STATE ENTITIES,
19 CERTAIN RECORDS PREPARED IN ANTICIPATION OF
20 LITIGATION OR FOR USE IN PENDING LITIGATION, AND
21 RECORDS THAT WOULD BE PRIVILEGED IN CERTAIN
22 CIRCUMSTANCES; TO REQUIRE THAT THE DIVISION OF
23 ARKANSAS STATE POLICE PROVIDE TO THE LEGISLATIVE
24 COUNCIL QUARTERLY REPORTS CATEGORIZING CERTAIN
25 EXPENSES; TO AMEND THE CONDITIONS UNDER WHICH
26 ATTORNEY'S FEES ARE AWARDED UNDER THE FREEDOM OF
27 INFORMATION ACT OF 1967; TO DECLARE AN EMERGENCY; AND
28 FOR OTHER PURPOSES.
29
30
31 Subtitle
32 TO AMEND THE FREEDOM OF INFORMATION ACT
33 OF 1967; AND TO DECLARE AN EMERGENCY.
34
35
36 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
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2 SECTION 1. DO NOT CODIFY. LEGISLATIVE INTENT.
3 (a) It is the intent of the General Assembly to adopt the federal
4 deliberative process exemption as an exemption under the Freedom of
5 Information Act of 1967, § 25-19-101 et seq., as defined in a 7-2 decision
6 authored by United States Supreme Court Justice Barrett in "United States
7 Fish and Wildlife Serv. v. Sierra Club, Inc.," 141 S. Ct. 777 (2021).
8 (b) It is the intent of the General Assembly to adopt and codify the
9 holding in "George v. Ark. Dep't of Human Services," 88 Ark. App. 135 (2004),
10 in which the Arkansas Court of Appeals held that a court may not assess an
11 award of attorney's fees against a state official or state employee in his or
12 her individual capacity in a lawsuit under the Freedom of Information Act of
13 1967.
14
15 SECTION 2. Arkansas Code § 12-8-108(c), concerning information related
16 to the security of the Governor's Mansion and mansion grounds that is not
17 subject to disclosure under the Freedom of Information Act of 1967, is
18 amended to read as follows:
19 (c) Data, records, communications, surveillance footage, security
20 procedures, emergency plans, and other information compiled or possessed by
21 the division concerning the Governor's Mansion and mansion grounds duties
22 performed by the division as required under subsection (a) of this section
23 are confidential and not subject to disclosure under the Freedom of
24 Information Act of 1967, § 25-19-101 et seq.
25
26 SECTION 3. Arkansas Code § 12-8-108, concerning the security of the
27 Governor, Governor's Mansion, and State Capitol building and grounds provided
28 by the Division of Arkansas State Police, is amended to add an additional
29 subsection to read as follows:
30 (d)(1) Except as provided under subdivision (d)(2) of this section,
31 the division shall submit to the Legislative Council, or to the Joint Budget
32 Committee if the General Assembly is in session, a report on a quarterly
33 basis that categorizes the aggregate expenses incurred by the Executive
34 Protection Detail for services provided to the Governor.
35 (2) However, the division shall not include information in the
36 quarterly report required under subdivision (d)(1) of this section if it
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1 violates subsection (a) of this section.
2
3 SECTION 4. Arkansas Code § 25-19-105(b), concerning specific
4 exemptions to the requirements under the Freedom of Information Act of 1967,
5 is amended to add additional subdivisions to read as follows:
6 (28) Records that reflect the planning or provision of security
7 services provided to the Governor, the Lieutenant Governor, the Attorney
8 General, the Secretary of State, the Auditor of State, the Treasurer of
9 State, the Commissioner of State Lands, members of the General Assembly,
10 Justices of the Supreme Court, or Judges of the Court of Appeals;
11 (29) Records revealing the deliberative process of state
12 agencies, boards, or commissions, including:
13 (A) Executive branch state agency inter-agency and intra-
14 agency memoranda or letters that would not be available by law to a party
15 other than in the course of litigation; and
16 (B) Inter-agency and intra-agency memoranda and letters,
17 including:
18 (i) Communications and documents reflecting advisory
19 opinions;
20 (ii) Recommendations; and
21 (iii) Deliberations that comprise part of the
22 process by which governmental decisions and policies are formulated;
23 (30) Records prepared by an attorney representing an elected or
24 appointed state officer, a state employee, or a state agency, board, or
25 commission in anticipation of litigation or for use in pending litigation;
26 and
27 (31) Records created or received by an elected or appointed
28 state officer, a state employee, or a state agency, board, or commission that
29 would be privileged under Rule 502(b) of the Arkansas Rules of Evidence, as
30 that rule existed on September 1, 2023.
31
32 SECTION 5. Arkansas Code § 25-19-107(d) and (e), concerning the
33 conditions under which attorney's fees shall be awarded as a result of an
34 appeal from a denial of rights under the Freedom of Information Act of 1967,
35 are amended to read as follows:
36 (d)(1) In any action to enforce the rights granted by this chapter, or
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1 in any appeal therefrom, the a court shall may assess against the a defendant
2 reasonable attorney's fees and other litigation expenses reasonably incurred
3 by a plaintiff who, after filing suit, has obtained from the defendant a
4 significant or material portion of the public information he or she
5 requested, unless the court finds that the position of the defendant was
6 substantially justified only if the court finds that the:
7 (A) Plaintiff substantially prevailed; and
8 (B) Position of the defendant was arbitrary or in bad
9 faith.
10 (2) If the a defendant has substantially prevailed prevails in
11 the an action, the a court may assess expenses against the a plaintiff only
12 upon a finding that the action was initiated primarily for frivolous or
13 dilatory purposes.
14 (e)(1) Notwithstanding subsection subdivision (d)(1) of this section,
15 the a court shall not assess reasonable attorney's fees or other litigation
16 expenses reasonably incurred by a plaintiff against the:
17 (A) The State of Arkansas or a department, agency, or
18 institution of the state; or
19 (B) An elected or appointed state officer or a state
20 employee acting within the scope of his or her employment.
21 (2)(A) A plaintiff who substantially prevailed in an action
22 under this section against the State of Arkansas or a department, agency, or
23 institution of the state a defendant under subdivision (e)(1) of this section
24 may file a claim with the Arkansas State Claims Commission to recover
25 reasonable attorney's fees and other litigation expenses reasonably incurred
26 only if a court made the findings under subdivision (d)(1) of this section.
27 (B) A claim for reasonable attorney's fees and litigation
28 expenses reasonably incurred in an action against the State of Arkansas or a
29 department, agency, or institution of the state shall be filed with the
30 commission pursuant to § 19-10-201 et seq. within sixty (60) days of the
31 final disposition of the appeal under subsection (a) of this section.
32
33 SECTION 6. RETROACTIVITY.
34 (a) Section 2 of this act is retroactive to January 1, 2022.
35 (b) Section 25-19-105(b)(28), created in Section 4 of this act, is
36 retroactive to January 1, 2022.
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2 SECTION 7. EMERGENCY CLAUSE. It is found and determined by the
3 General Assembly of the State of Arkansas that the safety and security of the
4 Governor and other state constitutional officers is of paramount importance
5 to the peace, health, and safety of individuals in the State of Arkansas;
6 that recent threats to certain state constitutional officers and their
7 families illustrate the need for enhanced protection of records pertaining to
8 the security of certain state constitutional officers and their families in
9 order to protect the public peace, health, and safety; that in order to
10 ensure the continuity of state operations and preserve the secure nature of
11 services provided to the Governor and other state constitutional officers,
12 certain records pertaining to the safety and security of the Governor and
13 other state constitutional officers must be confidential; that this act is
14 immediately necessary because making public certain records concerning the
15 safety and security of the Governor and other state constitutional officers
16 would place the lives and security of the Governor and other state
17 constitutional officers at a greater risk, thereby risking the peace, health,
18 and safety afforded to Arkansans; that the public peace, health, and safety
19 of the State of Arkansas is adversely impacted by preventing state agencies,
20 boards, and commissions from formulating policies and making decisions
21 critical to the operation of the state in an efficient manner; and that this
22 act is immediately necessary to enable state government officials to
23 effectively communicate during the deliberative process in order to make
24 decisions that serve the best interests of the State of Arkansas in an
25 efficient and secure manner. Therefore, an emergency is declared to exist,
26 and this act being immediately necessary for the preservation of the public
27 peace, health, and safety shall become effective on:
28 (1) The date of its approval by the Governor;
29 (2) If the bill is neither approved nor vetoed by the Governor,
30 the expiration of the period of time during which the Governor may veto the
31 bill; or
32 (3) If the bill is vetoed by the Governor and the veto is
33 overridden, the date the last house overrides the veto.
34
35
36
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Statutes affected: HB 1003: 12-8-108(c), 25-19-101, 12-8-108