EDITOR’S NOTE: This is an account of how Bob McCord negotiated prodded and pulled the state’s Freedom of Information Act through against all odds. As the publisher, owner and editor of The Times of North Little Rock, McCord pulled off the impossible when the then state’s two biggest daily newspapers — the Arkansas Gazette and the Arkansas Democrat — wouldn’t get involved because they didn’t think the proposal had a chance of passage. But unlike other accounts, this story is written in Bob’s own words. The staff of The Times over the years has been proud to carry on Bob’s legacy as not only advocates for sunshine laws but his tradition as staunch defenders of the act. We have used the Act frequently and proudly serve its contributions to the highest standards of journalism
Arkansas’ Freedom of Information law — one of the most effective in the nation — came about because of the work of an upstart journalism organization and the resolve of a newcomer Republican to change Arkansas politics.
The Republican was Winthrop Rockefeller who decided to settle in Arkansas after returning from World War II and to do his best to end one-party rule in what used to be the most Democratic state in the country. Rockefeller, who served two terms as governor from 1967 to 1971, was the first Republican to be elected governor of Arkansas since Reconstruction.
Rockefeller came to Arkansas in 1953 to visit an Army buddy. Intrigued by the state, he settled on Petit Jean Mountain and followed the Rockefeller tradition of philanthropy and later, through an appointment by Governor Orval Faubus, became involved in bringing industry to the state. He soon saw the need to strengthen the tiny Republican Party in one-party Arkansas.
At the same time, a chapter of a national organization of journalists named Sigma Delta Chi (now the Society of Professional Journalists) was being started in Little Rock. The year was 1961, and once formed, the chapter members — largely reporters and photographers rather than editors and publishers — looked about for a project. They became mildly interested in the national organization’s campaign for a law in every state that would provide access to government meetings and records — laws similar to a national Freedom of Information bill that was before Congress.
The Arkansas legislature had passed a very weak open-meetings law in 1953, but it was easily violated because it permitted public meetings to be closed if the agency holding the meeting decided it was considering "privileged matters, communications or information concerning individuals." There was no law in Arkansas guaranteeing access to public records and documents.
The result was that secrecy was prevalent in government throughout the state.
Meanwhile, Rockefeller, seeing the abuse of government power, election fraud and other examples of government in secrecy, became convinced that the state needed a strong Republican Party to act as a watchdog. So he started a couple of organizations, the Arkansas Election Research Council and the Committee for Two Parties. People began urging him to run for office, and in 1964 he decided to become a candidate for governor against Faubus.
Faubus won easily, capturing 56 percent of the vote. But Rockefeller was determined, and in his concession speech to Faubus he announced that he would run again in two years.
Rockefeller immediately began criticizing the one-party dominance of state government and the secret deals of the "Faubus machine." Rockefeller was responsible for the voters rejecting a huge highway bond issue that Faubus proposed. Traveling the state, Rockefeller described his inability to see voting records, or even to find out which banks were chosen as depositories of state money — depositories that didn’t even have to go to the expense of paying interest on the money.
Rockefeller’s lawyers took the state treasurer to the Supreme Court, which ruled that under common law, citizens had the right to know which banks had public funds on deposit. The lawsuit was among the things that made Faubus decide not to run for a seventh term, and, ironically, the author of the bank decision, Associate Justice Jim Johnson, became Rockefeller’s opponent in November 1966. Both Rockefeller and Johnson promised that, if elected, they would ask the legislature to pass a law opening records to the public, and the two parties made this a plank in their platform.
After Rockefeller was elected, the need for a better law for open meetings was also demonstrated. A few senior legislators met with the State Revenue Building Commission and decided to buy Capitol Hill apartments, a decrepit building next to the Capitol owned by a friend of the legislators. Reporters heard about the meeting, but when they showed up to cover it, the legislators made them leave. But the reporters found out what happened at the meeting and wrote about it, and not only the press but the public was incensed.
In Fort Smith, reporters attempted to cover a meeting where the trustees of the state-operated junior college were going to raise staff salaries, but they were denied admission under the provisions of the so-called open-meetings law of 1953. The trustees asked Attorney General Bruce Bennett if they were correct, and Bennett said yes, writing in his official opinion that whatever a government official said was privileged was, in fact, privileged and therefore not subject to public scrutiny.
The opinion caused an uproar among journalists.
The search for a project by the Little Rock Chapter of Sigma Delta Chi came to an end when the members, already encouraged by the passage of a federal Freedom of Information law in 1966, voted to take on the drafting and promoting of a law for Arkansas. The Arkansas Press Association, the Arkansas Press Women and the Arkansas Associated Press Managing Editors Association passed resolutions supporting the project.
True to his promise to the voters, Governor Rockefeller already had ordered his staff to prepare open-records and open-meetings bills. But State Capitol reporters prevailed upon him to let Sigma Delta Chi prepare the bill so it would be a nonpartisan effort. Rockefeller agreed.
The organization had only about 20 members and no money to spend on lawyers; there were two statewide newspapers in Little Rock then but neither of them made any contribution and were, in fact, somewhat skeptical about the project. So, Sigma Delta Chi members actually drafted the bill, deciding to deal with meetings and records in the same bill. The custom in most states had been to have separate laws on meetings and records.
Help came from several sources — lawyer friends like Milton McLees, a municipal judge who believed in open government, and legislative allies like Nathan Schoenfeld of Hot Springs, who persuaded the Legislative Council legal staff to give advice and collect Freedom of Information laws from other states for the journalists to use as guides.
For the bill’s sponsors, the journalists recruited Ben Allen, a lawyer and a liberal veteran state senator from Little Rock, and Leon Holsted, a pharmacist, a former athlete and a very popular state representative from North Little Rock. They were Democrats, of course. In fact, at the time there were only three Republicans in the 135-member legislature.
Because freedom of information had been a campaign issue and was written about a great deal in state newspapers, there was very little opposition expressed publicly about the bill, although many legislators said privately that government would operate more smoothly if the press had less, rather than more, access.
But Allen and Holsted did a good job of persuading their colleagues to vote for the bill. Many of Rockefeller’s aides lobbied for the bill, especially those known in those days as "Democrats for Rockefeller" who were weary of the Faubus machine.
Rockefeller, of course, spoke in favor of the bill when asked, but he cleverly avoided the implication that this was a Republican idea.
Many journalists also became lobbyists for the bill, although a couple of State Capitol reporters refused, saying it would imperil their objectivity. The chairman of the FOI committee that did the brunt of the work was Richard Allin, who had been a State Capitol reporter for the Arkansas Gazette before becoming a columnist. Among those who worked hard on the project were Sylvia Spencer, Bob Carey and Cragg Hines of the United Press, Ernest Valachovic of the Gazette, R. B. Mayfield and Marcus George of the Arkansas Democrat and John Robert Starr of The Associated Press.
Many amendments were proposed that would have crippled the bill, but luckily all were avoided except for four, which were the usual exceptions found in most FOI laws. Amazingly, the bill passed without a dissenting vote — 91-0 in the House, 32-0 in the Senate. Governor Rockefeller signed it into law Feb. 14, 1967.
Two months later, the Arkansas Freedom of Information Act got its first test.
At the conclusion of a regular meeting, the North Little Rock City Council adjourned to the mayor’s office to talk with City Attorney Reed Thompson about opposing a Public Service Commission order. Two members of the press, Ralph Patrick, managing editor of The Times of North Little Rock, and Les Seago, a reporter for the Arkansas Gazette, followed the public officials into the office but were told by Mayor Casey Laman and Thompson that this was an executive session and they would have to leave.
Patrick objected, citing the recent passage of the FOI law. Thompson said that the City Council was his client and that no law could require that a lawyer meet with a client in public. When Patrick continued to object, Thompson said, "Go ahead and file your damn lawsuit."
That’s exactly what the North Little Rock Times did. It engaged as its lawyer a real advocate of open government, Phil Carroll of the Rose Law Firm of Little Rock, who for many years was the libel lawyer for the Arkansas Gazette and other print and broadcast companies.
Circuit Court Judge Warren E. Wood heard the case and ruled that, indeed, the city had violated the new FOI law, and this infuriated Mayor Laman. He then hired Leon Catlett, one of the state’s most successful lawyers, to appeal to the state Supreme Court. There was an exchange of briefs and oral arguments in the case, styled Laman vs. McCord. On Oct. 21, 1968, the Supreme Court unanimously upheld the lower court decision in favor of the newspaper
In the opinion, written by Associate Justice George Rose Smith, the court said:
"In the act now before us, the General Assembly clearly declared the state’s public policy: ‘It is vital in a democratic society that public business be performed in an open and public manner.’ We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.
"The language of the act is so clear, so positive, that there is hardly any need for interpretation … Counsel for the city base their arguments entirely on the attorney-client privilege … predicting that the city will not be able to prepare its cases for trial without disclosing its strategy and its weaknesses to its adversaries.
"We think that, as a practical matter, counsel are unduly apprehensive about the impact of the act upon municipal litigation … The city attorney can certainly prepare a case for trial without discussing his plans in detail with the city council …
"On the one hand, to deny to the city council the right to meet in secret with the city attorney might in some instances work to the public disadvantage. But, on the other hand, to allow the council to go into executive session at any time, upon the pretext of consulting the city attorney about legal matters, might readily open the door to repeated and undetectable evasions of the Freedom of Information Act — also to the public disadvantage.
"Policy decisions such as that are peculiarly within the province of the legislative branch of the government. In this instance that branch has spoken so unequivocally that its command cannot be misunderstood."
In the 30 years since the passage of the FOI act, there have been efforts at every legislative session to weaken it with amendments. Most have been defeated but a few have passed, making the law weaker than it was in the beginning. Even the lawyer-client privilege ruling is regularly challenged, but fortunately no amendment obviating Laman vs. McCord has passed.
A coalition with representatives of every journalism organization in the state meets regularly during legislative sessions to examine bills that could affect the FOI law. The number of these bills decrease every two years because the good news for open government in Arkansas is that public officials have become very much aware of the FOI law and are reluctant to oppose it because they know it is popular with the public.
Twenty-five times the law has been appealed to the state Supreme Court, and each time the court’s decision has been in support of the principle of open government. Every Attorney General since Bruce Bennett not only has supported FOI in official opinions, but has given speeches, conducted seminars and published handbooks to acquaint the public and elected officials of their rights under the FOI law.
Perhaps the best illustration of the law’s influence is in the conduct of the legislators. The 1874 Arkansas Constitution, which, of course, has precedence over statutory law, says, "The sessions of each house and of committees of the whole shall be open unless when the business is such as ought to be kept secret."
The House and Senate used to take advantage of this provision and meet in secret. However, since the passage of the FOI Act, it has never happened. ROBERT S. McCORD was the president of the Little Rock Chapter of Sigma Delta Chi when the FOI law was passed. He was then the editor and publisher of The Times of North Little Rock, and filed the lawsuit that bears his name. He retired in 1991 as the senior editor of the Arkansas Gazette.