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 9
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 By: Senator Hester
 By: Representative Ray
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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
                 REFLECT COMMUNICATIONS BETWEEN THE GOVERNOR AND HIS
                 OR HER STAFF AND THE SECRETARY OF A CABINET-LEVEL
                 DEPARTMENT, CERTAIN RECORDS PREPARED BY AN ATTORNEY
                 FOR USE IN LITIGATION THAT IS PENDING OR ANTICIPATED
                 IN LIGHT OF A PLAUSIBLE THREAT OF LITIGATION THAT HAS
                 BEEN DOCUMENTED IN WRITING, 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.
         It is the intent of the General Assembly to adopt and codify the
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 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 identifies by month and budget category the 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
 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:
                         (A)   Governor; or
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                      (B)   Lieutenant Governor, Attorney General, Secretary of
 State, Auditor of State, Treasurer of State, Commissioner of State Lands,
 members of the General Assembly, Justices of the Supreme Court, or Judges of
 the Court of Appeals;
               (29)   Records reflecting communications between the Governor or
 his or her staff and the secretary of a cabinet-level department;
               (30)   Records prepared by an attorney representing an elected or
 appointed state officer, a state employee, or a state agency, board, or
 commission for use in litigation that is:
                      (A)   Pending; or
                      (B)(i)     Anticipated in light of a plausible threat of
 litigation that has been documented in writing.
                               (ii)    A custodian of records denying a request under
 this chapter based on subdivision (b)(30)(B)(i) of this section shall provide
 the requestor the written documentation of the plausible threat of litigation
 upon which the denial is based.
                               (iii)   Failure to provide the written documentation
 of the plausible threat of litigation under subdivision (b)(30)(B)(ii) of
 this section subjects the custodian to the criminal penalties under § 25-19-
 104 and the assessment of attorney's fees and other litigation expenses under
 § 25-19-107; 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
 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
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 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 June 1, 2022.
          (b)   Arkansas Code § 25-19-105(b)(28)(A), created in Section 4 of this
 act, is retroactive to June 1, 2022.
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          SECTION 7.        DO NOT CODIFY.
          This act does not limit the ability of Arkansas Legislative Audit to
 report information it obtains to the General Assembly.
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       SECTION 8.    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 inhibiting effective
 communications between the Governor and his or her staff and the secretaries
 of cabinet-level departments regarding the formulation of policies and the
 making of decisions critical to the operation of the state; and that this act
 is immediately necessary to enable state government officials to effectively
 communicate 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 9: 12-8-108(c), 12-8-108, 25-19-105(b), 25-19-107(d)