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Brantley: Let Women Pay To Get Public Information

Updated: Apr 15

(Guest post from Rep. Dan Greenberg)

On Thursday, the Arkansas Times speculated about the influence exercised over me by the Vatican. They’ve since followed up with two attacks on my latest ethics bill. In brief, this bill would give citizens who solicit information from their government and have their requests denied another avenue for redress: They could seek an opinion from the attorney general as to whether that refusal is proper under the state’s Freedom of Information Act (FOIA). (Currently, your only options when such a request is refused are to give up or hire a lawyer.)

Attorney General Dustin McDaniel criticized the bill, saying that “potentially hundreds of FOIA requests” would place a “heavy burden” on his office. The Arkansas Times blog then uncritically echoed the McDaniel line — Max Brantley wrote that he is “persuaded” that requiring the attorney general’s office to opine as to whether the law was being obeyed would “inundate the office with work.”

Brantley may be persuaded, but perhaps the rest of us are pedestrian enough to take arguments and evidence into account. The notion that the AG’s office would be flooded with paperwork strikes me as unlikely. Can there really be that many refused FOIA requests which are difficult to evaluate?

I suspect that the real problem of FOIA requests is not that there are so many of them that they greatly burden government bodies. Rather, the problem is that there are a relatively small number of meritorious requests which are denied because the deniers don’t know what the law is, don’t care what the law is, or are well aware that the requestor has no alternative but to shell out big bucks to a lawyer and go to court. But if you are a member of that small group of people, then to you it looks like a big problem.

That is the problem that my bill attempts to solve. If Brantley has evidence to the contrary – that, for example, there’s a whole bunch of FOIA requests that are denied regularly that raise complex legal issues — I’d be delighted to see it. But at this point, his empty assertions are unpersuasive.

It’s my guess that the merits of most denied FOIA requests, on their face, are pretty easy to evaluate. It should be easy to give a positive recommendation to any request for public records that doesn’t fall into one of the classic FOIA exceptions. It should be easy to give a negative recommendation to any request that falls outside of the duties that FOIA creates. And if a particular request is especially dependent on context and it is unpredictable how a court would rule on it, it should be easy to state the considerations that a court would take into account without making an ultimate judgment on the particulars of the case. A minimal administrative review of agency FOIA judgments is standard in many states and is needed in Arkansas.

John Brummett’s column today is a vast improvement over Brantley’s approach. I don’t agree with it all (I think Brummett underestimates the force of an attorney general’s written opinion in Arkansas, which is typically given a great deal of deference by government employees), but it intelligently recaps and analyzes several legal and political issues related to my FOIA proposal. It’s a big step up from the classic Arkansas Times methodology of applying intense scrutiny to the ideas of people you disagree with while accepting as gospel whatever those with your political viewpoint say.

I do think there is a significant possibility that the attorney general and I may come to consensus about FOIA reform. Yesterday, after I saw where he told a journalist that he would like to speak to me privately about FOIA reform, and just after I worked through the multiple layers of irony in that statement, I left a call with his office. I imagine we’ll get together next week and find some common ground.

Finally, just a word about “grandstanding,” which is a term of abuse that the state’s reigning political establishment resorts to with some frequency.  This is a term I never encountered until I was elected to public office, and it is not the first time people have used it in reference to me. I have never seen a definition of it. It seems to mean: “That guy’s advocating a good idea that I oppose, but I am too embarrassed to explain why.”

(Note: I want to thank the headline artists at the Arkansas Times for the inspiration for the title of this post. Some previous accounts of the Arkansas Times’s very unusual journalistic methodology can be found in the “Related Posts” links below.)

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