by Max Brantley
The governance committee of the state Game and Fish Commission is to meet at 1 p.m. today and Gerard Matthews will be reporting. The expectation is that the ruling troika of the commission, established under a new governance procedure currently under contest in court by former Commissioner Sheffield Nelson, will fall on its sword on the proposal announced last week to write a special Freedom of Information Act for the Commission. It would be more restrictive than that applying to the rest of state government and include a provision to protect "embarrassing" information. Gov. Mike Beebe has said in the strongest terms that the commission should forget about it.
Well and good. But just be sure that this retreat won't end the Nelson lawsuit, his attorney Don Eilbott tells me. The FOI proposal came up primarily to block an avenue for Nelson to get information more easily about his lawsuit. There's far more at issue.
First up is whether Game and Fish considers itself an independent power under state government, which several comments from within the agency have indicated. If the FOI doesn't apply, no other law applies. Eilbott believes, for example, that the agency has long ignored the administrative procedures act, which requires notice to the secretary of state and an economic impact statement on rules changes. He argues that the act was ignored on the new committee system, which effectively puts control of the agency in the hands of three of the seven commissioners. But the law must be followed on other matters, too. Several critics, too, have questioned whether the agency followed law in getting an outside legal counsel to fight Nelson's lawsuit, rather than using the attorney general's office.
The public may win a skirmish today, but the war over Game and Fish accountability isn't over. You sometimes wonder whether the commission even acknowledges the legality of judicial review of its actions.
UPDATE: Commissioner Emon Mahony, a man not known for abject apologies, does the honors. From Gerard, Mahony's announcement:
We apologize for and regret public confusion this draft has caused. There will be no further consideration of this draft proposal.
The issue is over and won't be revised, press is told. Sounds like lawyers will be thrown under the bus on this one, not the pampered pashas of privilege who dreamed this up. More from Gerard on the jump.
Said Gov. Mike Beebe: "I am pleased to see the commissioners move quickly and decisively to put a stop to this effort to weaken Arkansas's Freedom of Information Act."
Commissioner Emon Mahony started off his remarks saying, "By making the draft public last week, we wanted to have a full and robust discussion of the draft FOI proposal. Certainly a robust discussion has occurred."
He continued, "After listening to the reaction from both the executive and legislative branches of our state government, this commission clearly understand the problems with drafting new FOI rules for our agency. We apologize for and regret the public confusion this draft proposal has caused. Both the governor and the attorney general believe that presenting this draft proposal is not a good idea and the commission, in so far as I am aware, unanimously agrees. There will be no further discussion or consideration of this draft proposal… We are sorry for the confusion and dissension this has caused."
When asked what it was about the policy that led the commission to withdraw the proposal from future consideration, Mahony did not mention any particular portion or clause, but said simply, 'The governor's and the attorney general's objections to it."
AGFC's Chief Legal Counsel Jim Goodheart said there were concerns about whether certain elements of these draft procedures are contrary to existing state FOI law. He promised matters of this nature will be better communicated in the future, to the commission and the governor and attorney general's office, to assure their cooperation. As to the origin of the policy, Goodheart said there had been "dialogue off and on for some years about how this agency could have specific procedures to implement FOI law in Arkansas."
"As you know there’s many agencies that have additional procedures in which they implement FOI law in Arkansas," Goodheart said. "Something additional was needed for this agency. Whether that draft was what was needed - we’ve withdrawn that - and we’re going to take direction from our commissioners as to what we can do in the future."
When asked if he felt the Freedom of Information Act applied to the Game and Fish Commission, Mahony said, "We comply with the FOI and have since I've been here." When pressed on the question of whether the FOI applied to the commission, he said, "It is commission policy to comply with FOI and we have done that all along. We have taken no action to change that."