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Understanding the impact of SB 373

There has been much discussion about Senate Bill 373, a proposal in the current session of the Arkansas Legislature that would temporarily exempt from the Arkansas Freedom of Information Act (FOIA) attorney-client communication and attorney work product records that pertain to threatened or pending litigation against a public agency. The bill addresses a problem that exists for public agencies such as cities, counties, school districts, state agencies, institutions of higher education and others.

From time to time when public entities are sued or threatened with lawsuits, attorneys use the FOIA to seek information that is traditionally exempt from discovery in court. Such records include written legal advice, draft legal strategy, outlines for depositions, draft pleadings, and other information that when disclosed can put public attorneys at a severe disadvantage in litigation. Because these records are not exempt under the FOIA, government attorneys often refrain from taking notes, writing memos to clients or emailing our fellow attorneys because those records may be released to opposing counsel under the FOIA.

The FOIA is a vital tool for the public to access information and hold government agencies accountable. But the law was never intended to place government entities at a disadvantage in legal disputes, particularly when taxpayer funds are at stake. That is why the act provides a "working papers" exemption to the Office of the Arkansas Attorney General. As the state's long recognized legal expert on the FOIA, former University of Arkansas law professor John J. Watkins noted in a 1994 Arkansas Law Review article, "The absence of a FOIA exemption for records falling within the attorney-client privilege or the work product doctrine places government lawyers in Arkansas under an enormous handicap in litigating against private parties or advising their clients on a day-to-day basis." This problem has only grown with the modern necessity of using digital communication to provide legal advice.

Even Watkins, Richard J. Peltz-Steele and Robert Steinbuch, authors of The Arkansas Freedom of Information Act, recognize that entities subject to the FOIA are at a "severe disadvantage in litigation" and that the FOIA "can give an edge to opponents in settlement negotiations." This issue is not unique to Arkansas, which is why more than 40 other states and the federal government provide some type of exemption for legal records in either statute or case law.

Lawyers at the University of Arkansas System have had requests for deposition notes, pleading drafts and email correspondence related to cases, among others. Some have argued the FOIA allows courts to order these types of records sealed during litigation; however, that is not always the case. In cases where litigation is threatened, there is no judge involved to hear a request for records to be protected. There is also no avenue for protection for cases in state court. The Arkansas Supreme Court held in 1990 in City of Fayetteville v. Edmark that the Arkansas FOIA trumps attorney-client privilege and work-product protection. The Court said it was up to the Legislature to exempt these records. While we have at times received protective orders for litigation in federal court, we know of no case where a state court has protected litigation records from the FOIA.

Critics argued that the original version of Senate Bill 373 was too broad, giving public agencies the ability to use it to shield records outside of the bill's intent. However, with the help of the bill's sponsors, Sen. Bart Hester and Rep. Bob Ballinger, the legislation was amended to address concerns. As amended, the exemption only applies to attorney-client and work product records in the context of threatened or pending litigation. It also provides that the exemption expires after the litigation is concluded. These amendments help strike a balance between the need for open government records and giving public agencies a fair day in court.

Despite what has been said and written about this bill, it would have little impact on the typical record requests from the press or the general public. Those impacted will be a handful of trial lawyers who are using the FOIA to gain an unfair advantage in litigation. In practice, it would allow public lawyers to write down advice and strategy that they currently avoid because their records may be released.

Ultimately, any exemption to the FOIA must serve the public interest, and as Watkins notes, "The public's interest is ill-served when government attorneys must reveal trial preparation materials, attorney-client communications and similar sensitive records to their courtroom adversaries." Senate Bill 373 addresses this problem in a limited, responsible way.

JoAnn Maxey is General Counsel for the University of Arkansas System.

Editorial on 03/19/2017

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