Bill Summary – FastDemocracy

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