From the Arkansas Statehouse...

Victory for FOI advocates.

In FOI on 24 February 2009 at 1:05 pm

The House Judiciary Committee this morning approved a bill allowing plaintiffs to recover legal fees from the state in Freedom of Information Act appeals. This is the first successful FOI action of the session; earlier bills to open the criminal records of public officials and to require the Attorney General’s office to review FOI rejections gained little traction.

Rep. Lindsley Smith sponsored today’s successful bill. Though a similar measure failed last session, the current version gained support by including a provision that allows the Arkansas Claims Commission to hear appeals. Unlike earlier FOI bills this session, this one had the backing of the Attorney General’s office.

Citizens whose FOI requests are rejected may appeal to a circuit court. However, previous rulings have found that the state does not have to pay attorney’s fees even in cases it loses. The new law will require the state to pay when plaintiffs “substantially prevail.”

There was some questioning in committee this morning about that language. Bowen Law School professor Rick Peltz said that, though there is currently no widespread consensus on the meaning of “substantially prevail,” the language is unlikely to cause a problem. “I’m confident that’s something we can leave to judicial evolution in the circuit courts,” he said.

Under state law, the Arkansas Claims Commission can pay a maximum of $10,000 in awards in most cases. Rep. Smith said she believes most appeals for attorney’s fees in FOI cases will be less than that amount. According to committee testimony, the money will come from a $1.5 million state fund for the payment of such claims.

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