THE DIGITAL RECORD: A lawyer works to preserve it.
Arkansas has a Freedom of Information law that gives citizens the right to inspect public records. The law’s effectiveness is severely limited by the lack of a law requiring government agencies to retain records so they can be inspected.
David Ivers of Little Rock, a lawyer and member of a group trying to draft a records-retention law, has gone so far as to say, in a letter to state Rep. Jodie Mahony of El Dorado, that “the absence of a records retention requirement in the law has made the Freedom of Information Act virtually useless now that everything is in electronic format and state agency officials, including top officials at the Department of Human Services, routinely and quickly delete their electronic mail and keep no paper copies. That makes it virtually impossible for the many persons and entities regulated by DHS and various other agencies to find out how decisions that affect them are being made.”
Despite the seriousness of the problem, and a widely expressed sentiment that it should be addressed, there is reason to doubt that it will be. Some government officials enjoy the privilege of rapid elimination of electronic and paper trails, and are likely to resist retention requirements. They are also likely to do their resistance work behind the scenes.
In 2003, the legislature passed a records-retention bill sponsored by Mahony. Gov. Mike Huckabee vetoed it. The bill would have required the state’s executive chief information officer to draft regulations and guidelines to be followed by all state agencies. Huckabee said he vetoed the bill because it did not adequately address the financial and logistical problems of such a large undertaking. Instead, Huckabee instructed the ECIO to “begin the process of defining rules and regulations for records retention,” including the financial impact of storage and search requirements. Huckabee also said that a “a logical starting point” for the ECIO would be “to analyze if this issue can best be addressed through promulgated policy or legislation.”
Drew Mashburn of the ECIO’s office said that a group consisting of state agency representatives and lawyers familiar with records law had been working on the matter and should have a final report in December. “We may be leaning in the direction” of rules and regulations rather than legislation, Mashburn said. “With a bill, it’s tough to amend except every two years,” he said. “Regulations are easier to amend. Any policy will need to be modified on a regular basis.”
Ivers is one of the lawyers working with the ECIO group, but he is not impressed with the idea of regulation in place of legislation. “Those regulations may never be implemented,” he said. “They could sit on the desk forever.”
Ivers much prefers something with the force of law behind it. He wants Mahony’s records-retention bill included in the Arkansas Bar Association’s legislative package for the 2005 session, which would mean that ABA lobbyists would work for the bill’s passage. The bill was not part of the ABA package two years ago.
The bill does not apply to cities, counties and school districts, apparently to lessen opposition. Any records bill applicable to state government would likely be extended to local governments eventually.
Two ABA committees, Health Law and Jurisprudence, have recommended that the records-retention bill be included in the ABA’s legislative program. But the ABA House of Delegates, the organization’s governing body, referred the bill to the Government Practice committee after one or more members of that group raised objections. Robert K. Jackson of Little Rock, the chairman of Government Practice and assistant general counsel for the state Game and Fish Commission, then wrote ABA President Frederick S. Ursery that the Government Practice committee had voted unanimously to recommend that the records-retention bill not be included in the ABA legislative package. Jackson said the committee did not oppose a records-retention bill in general, but did oppose the bill before them as being “overly broad.”
Ivers said that the Health Law committee had sought a meeting with the Government Practice committee to see if the two groups could work out their differences on the bill, but Jackson did not respond. Jackson declined to answer questions from the Arkansas Times about his letter to Ursery or his refusal to meet with the Health Law committee. He referred a reporter to Don Hollingsworth, executive director of the ABA.
For the moment, the ABA House of Delegates has deferred action on the records bill. The House of Delegates will meet again Jan. 22 (after the legislature has convened) and could reconsider the bill. Hollingsworth said that the ABA could support the records bill even if the bill is not part of the organization’s legislative package. Once a legislative session is under way, the ABA’s legislative committee decides whether the organization will support or oppose bills that are not part of the ABA legislative package.
Mahony, a lawyer himself, says he plans to reintroduce his records bill regardless of what the Bar Association does.
John J. Watkins is a professor at the University of Arkansas School of Law in Fayetteville and an authority on the Arkansas FOIA. In a recent issue of the Arkansas Lawyer, an ABA publication, he wrote, “Fashioning a record retention policy is a daunting task … ” So it seems.