Shortly after the City of Little Rock released its embarrassing “It’s Not You, It’s Us” letter, a cringe-inducing end to the equally absurd game of pretend the city played when it threw its hat into the ring for Amazon’s new headquarters (despite, you know, failing at all of the relevant minimum criteria that Amazon had listed), I sent an AFOIA request to the City and the Chamber of Commerce for:
In response, LR Chamber President & CEO Jay Chesshir emailed me that the requested records were exempt from release under the AFOIA. This was news to me, as nothing in Ark. Code Ann. 25-19-105(b) (where most AFOIA exemptions are contained) would exempt those records. Furthermore, there are multiple Attorney General Opinions which specifically stated that the Chamber was subject to the AFOIA. So what was going on here?
Actually…let’s, just for context.
In 2013, the Arkansas Public Law Center filed a lawsuit, challenging the payment of tax dollars to the Little Rock Chamber of Commerce. In early 2015, Circuit Judge Mackie Pierce ruled that Little Rock and North Little Rock’s payments to their respective Chambers of Commerce were unconstitutional, memorably referring to the argument that the payments were for service contracts as “lipstick on a pig.”
In response, the Arkansas Senate referred SJR 16 as a proposed constitutional amendment during the 2015 regular session, and the people of Arkansas passed Amendment 97 at the 2016 general election. Amendment 97 took effect on December 8, 2016, thirty days after the election.
As you might expect, it did not take long for the City of Little Rock to look at renewing its payments to its masters at the Chamber of Commerce, with City Manager Bruce Moore submitting a proposed $300,000 deal with the Chamber early in 2017. Around that same time, Sen. Jim Hendren (R-Gravette) filed SB 581, which he unironically entitled “An Act to Enhance Local Economic Development Efforts.” SB 581 passed both chambers with nary a nay vote, and only a small handful of non-voting legislators, and it was signed into law by the Governor on March 28, 2017.
SB 581 created, among other statutes, Ark. Code Ann. 14-176-105(b)(1), which states:
The following are exempt from the Freedom of Information Act of 1967, § 25-19-101 et seq., as related to economic development services:
(A) Files and materials that if disclosed would give advantage to the competitors or bidders; and
(B) Records maintained by an economic development service provider for a municipality or county related to any economic development project.
You see, in addition to the AFOIA exemptions in the AFOIA statute itself, there is a catch-all in the AFOIA that also exempts records that are generally subject to release “by laws specifically enacted to provide otherwise.” Sneaky. But, if they were trying to be sneaky by hiding this exemption somewhere other than in the AFOIA, why be so explicit about it? Thankfully, under Ark. Code Ann. 25-19-110, any exemption after 2009 that falls under the catch-all must specifically state that the records are exempt from the AFOIA.
Which means, I guess, that legislation designed to decrease transparency in government at least has to be transparent in its purpose. That’s cold comfort, however, in situations like this, where nearly the entire General Assembly is lining up to pledge fealty to the Chamber of Commerce and to allow the Chamber to operate in the shadows, spending taxpayer money without any accountability to a taxpayer who might wish to look at the spending.
Why should you care? Well, in addition to not being able to see how your tax dollars are spent, there is also the issue of the Chamber of Commerce being vocally (and financially) in support of tort “reform” measures that are largely designed to protect the Michael Morton’s (and other big-money donors) of the world at the expense of people who are injured or killed in nursing homes. The Chamber of Commerce, under the falsehood that tort reform will bring jobs (it won’t), improve access to healthcare (it won’t), and improve the economy (nope), gives money to legislators who support tort reform and makes repeated public statements of support for those efforts. It seems to me that some people might want to be able to see how their taxpayer dollars are being spent, if only to ensure that those dollars are not going toward tort reform support (or, if they are, to be able to pressure City Hall about Chamber activities in response to such spending).
If there is a silver lining to this, however, it might be in the way the AFOIA exemption is written. Thanks to an amendment to SB 581 by Rep. Justin Boyd (R-Fort Smith), the exemption only applies to records “maintained by an economic development service provider.” Prior to the amendment, the exemption applied to “records maintained by the municipality.”
The change of wording, while apparently designed to get the Chamber around the pesky AFOIA, left a window open for obtaining some of the records by sending an AFOIA request to the city for records related to Chamber’s “economic development services” activities. 1 So, earlier today, that is what I did, requesting the following from City Manager Bruce Moore:
[A]ll records maintained by the City of Little Rock regarding all 2017 contracts and communications with the Little Rock Chamber of Commerce.
This request includes, but is not limited to: contracts, service agreements, emails to or from Chamber officials or employees, emails that reference the Chamber or Chamber officials or employees, proposals (whether accepted or not), and drafts.
We will see what all is produced, I suppose. At least then we’ll have a better sense of just how opaque the Chamber of Commerce and its legislative puppets have managed to make the Chamber’s use of your money.
Curiously, the statute specifically exempts more or less all records related to economic development projects from the AFOIA, but has that much more narrow exemption for economic development services. Without getting too far into the weeds, “projects” are land, buildings, and similar real property, while “services” are strategic planning, counseling, job recruitment efforts, and the like.↩