Senate panel advances two bills defining ‘public meeting' in Arkansas Freedom of Information Act

Yahoo

12-03-2025

Little Rock Democratic Sen. Clarke Tucker (left) considers a question from Sen. Kim Hammer, R-Benton, at a Senate State Agencies Committee meeting on Tuesday, March 11, 2025. (Photo by Sonny Albarado/Arkansas Advocate)
An Arkansas Senate committee approved two bills hours apart Tuesday seeking to define a public meeting, an issue that has plagued local elected officials and government transparency advocates for decades.
Sen. Clarke Tucker, a Little Rock Democrat and sponsor of Senate Bill 227, told the State Agencies and Governmental Affairs Committee Tuesday morning his proposal would, 'after 50 years, bring clarity to the law' by setting parameters for what members of city councils, quorum courts or school boards can discuss outside of a public meeting.
The bill also would amend the Arkansas Freedom of Information Act (FOIA) to add cybersecurity breach as a reason to meet in executive session, introduce and regulate remote meeting attendance, and allow a court to nullify official actions taken as a result of violations of open meetings law.
Senate Bill 276, sponsored by Sen. Alan Clark, R-Lonsdale, defines a public meeting as any gathering of more than two members of a public body. Rep. Mary Bentley, R-Perryville, is co-sponsor of Clark's bill, but also has her own version, House Bill 1667, which hasn't been heard in committee yet.
Both bills brought before Tuesday's committee would apparently accomplish the same goal — give members of local governments a clearer understanding of what they can discuss outside of a formal meeting — but opponents of Clark's bill said it would encourage 'daisy chain'-style discussion of public business by sequential groups of two officials.
The FOIA allows residents access to public records, including communication between state officials. Members of the press and curious citizens often rely on the law to get additional information about contentious subjects, or to do routine checks into financial documents. The tool was used to uncover the $19,029 lectern Gov. Sarah Huckabee Sanders bought in 2023, and provided answers to opponents of the state's prison plan when officials remained tight-lipped.
The law also sets standards for public meetings, though vagueness in this category for the last half-century has led to frequent litigation. Tucker said his bill would establish a distinct line for what type of discussion is permissible outside of a public meeting.
Though not defined in current law, a meeting has generally been considered public when at least two members of a governing body meet.
On Tuesday, Clark asked several questions of Tucker's bill, introduced hypothetical situations and asked about the level of involvement of school board members.
Tucker maintained that under his bill, any number of members of a governing body could meet to chat, so long as they were not 'deliberating' or discussing items they would take action on in the foreseeable future.
While members of a school board cheering on the high school football team together would pose no issue, Tucker said the situation changes once the substance of the conversation becomes actionable.
'If the substance is, 'We're deciding public business,' it doesn't matter if there's 10 people there or two, that needs to happen at a public meeting,' Tucker said. 'That's the distinction.'
Tucker's bill received nearly unanimous support from the committee, of which he is the only Democratic member.
A result of two years of work, Tucker said he collaborated with a bipartisan group of public meetings advocates, attorneys, members of governing bodies and state-level task forces. He said he worked to make the bill 'pro-transparency' and 'pro-fairness' for members of the public and those serving on committees and councils.
Committee members applauded the effort Tucker put into the 10-page proposal, but they still questioned elements of the bill and how it might hold up if challenged in court.
Sen. Dan Sullivan, R-Jonesboro, asked specifically about the use of the words 'foreseeably' and 'reasonably' in Tucker's proposal, referencing concerns that a federal court recently decided to declare portions of Act 372 of 2023, which Sullivan sponsored, unconstitutional.
Tucker said his proposal did not restrict free speech, a foundational difference with the Act 372 lawsuit. He said he felt confident in the language as strict scrutiny would not be applied should the bill be challenged in court; the verbiage is typical in courts.
In response to members' questions, Tucker admitted that he didn't think SB 227 was perfect, but said it 'goes a long way toward helping clarify what the law is.'
Jimmie Cavin, an FOIA advocate, spoke in support of Tucker's bill Tuesday. He said he assisted with town hall meetings across the state during the last two years and encouraged members of governing bodies — like school board members — to get involved.
'It's such a positive step in transparency, and the greatest thing is [that] it's fair for everybody,' Cavin said. 'It's fair for Jimmie, and it's fair for Linda Hargis, my school board member.'
Joey McCutchen, a Fort Smith attorney who has argued FOIA cases before the Arkansas Supreme Court, also testified in support of Tucker's bill.
While McCutchen said he appreciated the definitions the bill introduces, he also said he appreciated the intent to ensure members of the public are also privy to officials' decision-making process.
'The citizens are entitled to see the sausage making,' McCutchen said. 'And if we don't see the 'Why?' and we don't see the sausage making, then we're going to be critical of the very board members that I know you're supporting, Sen. [Alan] Clark.'
Clark presented his bill after 4:30 p.m., when the committee reconvened following the day's Senate session, and told fellow panelists his bill 'better defines Sen. Tucker's bill.'
Tucker noted that two school board or city council members could subvert the intent of the public meetings law by having one-to-one discussions until all members, or at least a majority, agreed on which way to vote on an issue.
'That's possible,' Clark said, 'but that's not the spirit' of the bill.
Little Rock law professor and FOIA expert Robert Steinbuch testified that Clark's bill needs language to address concerns about serial meetings.
'I don't want to pick a number for you,' regarding how many officials should require a public meeting, he told lawmakers.
Andrew Bagley, Arkansas Press Association president and a newspaper publisher, was the only other member of the public to speak against Clark's bill.
He began his remarks by noting that Tucker's bill was 'a very good piece of legislation that brought all the parties together at the table.'
'It was one of those moments where you almost felt like the lightning was about to flash and the thunder was about to roll because God was moving in our midst. Now we have a bill that would undo all the good we had this morning' because it would allow all the discussion to happen behind closed doors, Bagley said.
Clark asked Tucker if he would support SB 376 if it was amended to prohibit polling or serial discussions between successive pairs of officials. Tucker said he would work with Clark to craft such language but could not support the bill as written.
Clark promised he would work on such an amendment but asked that the bill be advanced Tuesday night. Tucker was the sole no in the following voice vote.
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