OPINION

OPINION | JOHN BRUMMETT: A case of nitpicky editing?


Attorney General Tim Griffin is flirting with meddlesomeness in wielding his statutory authority to demand revisions in proposed constitutional amendments.

I complimented his office a couple of weeks ago on good editing of the abortion-choice proposal. He was right that the use of the phrase "reproductive health" instead of the word "abortion" was probably a fatal legal flaw (only a court could say for sure).

He was right that bestowing an abortion exception after six months for "health of the mother" without defining the phrase would ill-serve thoughtful voters and likely be viewed as too open-ended by courts.

Those are tricky edits, and many votes could hinge on them. But you have no chance at all to pass the amendment if a court strikes it down before it gets to the ballot. You have less chance when you get to the ballot if opponents can say justifiably that you're trying to trick voters with your wording.

Just level with the voters and pray. That's all you can do.

And now, on this proposal to effectively place the Freedom of Information Act in the state Constitution so that Sarah Sanders can't try to gut it further through legislation, Griffin's office has scoured the text and again recommended revisions that could affect not just the clarity, but the substance.

That has some of the freedom-of-information advocates wondering if he's not taking his statutorily authorized review role too far. They're wondering if his office wasn't given this authority mainly to make sure ballot titles weren't fraudulent. They're wondering if his nitpicking through the text in ways that could change the substance conflicts with the constitutional right of the people to propose their own laws through the initiative and referendum process.

They're wondering--just wondering--whether a lawsuit challenging his alleged overreach as an infringement on the people's rightful power might not be something to consider.

They're also pondering another word for "transparency."

One of Griffin's objections is that the proposed ballot title--the Arkansas Government Transparency Amendment--is undefined and more a matter of partisan coloring than a strict description of the proposal.

I kind of agree with him. Transparency is a hot word that sounds lofty, even unassailable, but is not easy to define in government terms. Griffin's letter says it's not a defined legal term.

What the proposal tries to do is enshrine in the Constitution the requirements now in the Freedom of Information law for public notice of meetings and public availability of records at the state and local government levels. It seeks to leave alone exceptions for such things as executive sessions for personnel matters, certain business records that could cause a competitive disadvantage, and some "working papers," such as those in the governor's office, that amount to internal state-government communication not ripe for the FOI requirements.

Does "government transparency" sum that up? Or does it amount to a coat of political spin?

I have been challenged as a supporter of the amendment who deals in words to come up with a better title. All I have come up with so far is the Open Meetings and Open Records in State and Local Government Amendment."

Boring, I know. Cumbersome, for sure. And Griffin is apt to act like he doesn't know what open means.

But it's the gist and it's absent risky frills or trickery.

Otherwise, Griffin's objections are in two categories. One is that phrases such as "public record," "public meeting" and "public process" aren't defined. The other is that the text applies to statutes that aren't cited.

There might be obliging fixes to be made on those phrases. But the advocates of the amendment deliberately left out extensive legal citations for fear of omissions or errors. Instead, they are proposing a separate initiated act to import the specifics of the current FOI. Griffin has until later in the week to find nitpicky fault with that.

The advocates' choices are to try to do revisions where Griffin calls for them while finding another word for "transparency," or to write a briefer and broader constitutional amendment simply requiring open government meetings and open access to records and letting the courts deal with it, or to file suit to get the Republican state Supreme Court to decide whether Republican Griffin is going too far.

A brief, broad statement of principle leaving details to courts seems more disruptive than necessary. A lawsuit would be an enjoyable process but with a predictable bad outcome in the state's current condition of Republican legal dominance.

It's no fun conceding to an editor you don't agree with and grumpily doing the fixes he orders. But that might be the best of the three options.

A better, more clearly defined word for transparency? Anyone?


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected]. Read his @johnbrummett feed on X, formerly Twitter.


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