The polypartisan group behind efforts to enshrine the Arkansas Freedom of Information Act in the state constitution will drop the lawsuit they filed with the Arkansas Supreme Court against Attorney General Tim Griffin last week.
Arkansas Citizens for Transparency (ACT) originally filed suit against Griffin on January 23 after the attorney general rejected multiple prior versions of the group’s two proposed ballot measures – a constitutional amendment and an initiated act – designed to increase citizens’ access to public information and prevent the Legislature from being able to weaken the FOIA in the future. Since Arkansas Citizens for Transparency filed their lawsuit, however, Griffin has approved both measures, allowing ACT to begin gathering the signatures needed to place both issues on the November ballot.
In addition to filing the lawsuit, ACT filed a motion asking the Supreme Court to expedite the case so the signature-gathering process would not be delayed. On Tuesday, Griffin responded to the lawsuit and request to expedite, arguing that the case should be dismissed now that the two proposals have been approved.
Attorney David Couch, a member of ACT, initially considered proceeding with the lawsuit even after the attorney general approved the measures, so the attorney general’s role could be “clarified” by the court.
By Tuesday, however, Couch and the other ACT members decided to shift their focus from litigation to signature gathering. “[W]hile it’s patently clear that what the attorney general did [in requiring ACT to make substantive changes to the proposals] was unconstitutional, the ballot question committee was organized to get a Freedom of Information amendment and act on the ballot,” Couch said. “While the proposals that were approved were not the exact proposals we originally wanted, we decided to not let perfect be the enemy of good [and] decided to go forward with what was approved and look forward to both being approved by the voters in November.”
There was also concern that continuing the litigation after the measures had been approved “might cause confusion with our effort to collect signatures and the campaign,” Couch added.
Based on all of this, Arkansas Citizens for Transparency filed a motion to voluntarily dismiss their lawsuit yesterday.
In the motion, the group noted they “previously had submitted 3 different versions of the proposed text of a constitutional amendment and proposed ballot titles” and “had previously submitted 5 different versions of the proposed text of the initiated act and 12 ballot titles” in response to the attorney general’s earlier rejections. Nevertheless, ACT’s motion said, “the ballot question committee for both the initiated amendment and initiated act met at 2 pm January 30, 2024, to review the certifications of the amendment and act” and they “unanimously agreed to file” a motion to voluntarily dismiss the case.
Griffin’s office issued the following response to ACT’s decision to dismiss the case:
The petitioners’ decision to abandon their suit against my office is a triumph for the rule of law and the taxpayer. The case was fatally flawed from inception and destined to fail, as my office’s motion to dismiss made clear. Continuing the case would have squandered taxpayer dollars, clogged up the judicial system and generally just wasted everyone’s time. The real winner is the law and our 80-year-old ballot review process. I am thankful and honored to work with brilliant, experienced staff who day after day demonstrate professionalism and grit.
Griffin’s reference to an “80-year-old ballot review process” is a common recent refrain from his office that seems designed to counter widespread criticisms about his office’s repeated rejections of proposed amendments and initiatives submitted for his review. These rejections have triggered multiple lawsuits against the state challenging both statutory changes made by the Legislature in 2023 and Griffin’s novel interpretation of his authority under the law.*
The right to voluntarily dismiss a lawsuit is absolute in circumstances such as this, so there is no concern that the Supreme Court might deny the request.
With the lawsuit behind them, ACT can now focus on acquiring the 90,704 signatures needed to place the proposed amendment on the ballot, as well as the 72,683 signatures needed for the initiated act. These signatures are due at the Arkansas Secretary of State’s Office no later than July 5.
*Correction: This paragraph has been modified to clarify that any apparent changes to the ballot review process are primarily the result of the attorney general’s discretion, rather than changes to statutory law. It originally read: “Griffin’s reference to an ’80-year-old ballot review process’ glosses over substantive changes the Legislature made to that process in the 2023 regular session. Those changes are at the heart of multiple pending lawsuits, including one in which the state Supreme Court has already granted a request to expedite.”