Arkansas Senate panel hears hours of testimony on SB9 FOIA changes; sponsors cite security, critics warn of transparency rollback

Senate State Agencies & Governmental Affairs convened a marathon public hearing on SB9, a special-session bill that would carve out new FOIA exemptions for certain governor-related records and expand attorney-client protections for state communications, while tightening when requesters can recover attorney's fees.

Senator Clark Hester, sponsor of the measure, said the proposal is driven by security concerns and recent threats to the governor and her family and by the need to let the governor's office communicate quickly with cabinet heads. "What I believe the most important part of this bill addresses is the protection of the governor of Arkansas and the first family," Hester said in his opening remarks. He described changes made after overnight work and public feedback and said the proposal limits the exemption to direct communications between the governor (or her staff) and cabinet-level secretaries.

But much of the hearing focused on two other parts of the bill that senators and outside experts said reach well beyond narrowly tailored security protections.

First, multiple witnesses warned that subsection 31which would make records privileged when they "would be privileged under Arkansas Rule of Evidence 502(b)"could be used broadly because a government-paid lawyer copied on an email would render that email exempt. "All you have to do is have a cc to a lawyer on a communication, and it would be exempt," warned Joey McCutchen of the Arkansas Transparency and Government Group. Academics and media representatives said that would let routine, nonlitigation communications between officials be shielded from public view simply by copying in counsel.

Second, legal commentators and public-interest lawyers criticized changes to the attorney-fees provision. The bill would require a requester to not only "substantially prevail" but also to show that the defendant acted "arbitrarily or in bad faith" before a court may award fees, and it replaces a mandatory "shall" award with discretionary "may" language in some contexts. Robert Steinbuch, a law professor and FOIA practitioner, told the committee the added standard would make prevailing requesters' recovery of costs "a mountainit's Everest to overcome," and would reduce lawyers' willingness to take meritorious, resource-intensive FOIA suits on behalf of low-income requesters.

Representatives of the Arkansas State Police and security experts argued for clarifying statute language to avoid repeated litigation over the boundaries of existing exemptions. Colonel Mike Hagar, director of the Arkansas State Police, told the committee: "We have never released any operational details at all ever," and argued that publishing flight manifests or unredacted receipts can let pattern-seeking actors learn security practices and exploit future vulnerabilities.

Still, numerous journalists, media groups and transparency advocates urged the committee to narrow any security carveout strictly to operation plans and tactics. "If the bill was limited to reasonable safety provisions, it would have the support of the APA and our newspapers," Eliza Gaines of the Arkansas Press Association told the committee. Citizens and civic groups repeatedly urged lawmakers not to allow a security exception to be used as "a smokescreen to shield government actions from public scrutiny." Several witnesses recommended sending contested language to the legislature's FOIA task force for more precise drafting.

Committee members pressed sponsors on mechanics and scope: whether the exemption would apply to material where a third party is cc'd, whether it would extend to routine procurement or expenditure records (sponsors said it would not), and whether retroactive language in one security section could be held constitutional. Law professors advised caution: retroactive changes to access already-requested records can raise constitutional questions and are legally fraught.

No final vote was taken during the hearing. The committee chair closed the public testimony after many hours of comments and said members would continue evaluating the measure and consider additional drafting changes. If adopted by the Legislature, the bill would not take effect until lawmakers set an effective date and any provisions found unconstitutional by courts could be litigated.

The hearing laid bare the core trade-off at the center of SB9: how to protect executive security without materially undermining Arkansas's historically strong FOIA protections. The committee is expected to continue work on precise drafting and may refer disputed language to the FOIA task force or propose narrower exemptions in follow-up sessions.