Recording contradicts Ballinger statements on failed FOIA bill
State Rep. Bob Ballinger of Berryville last week repeated his claims that there was no organized opposition to a failed 2017 bill that would have amended the state’s Freedom of Information Act.
Ballinger, who is running against incumbent District 5 state Sen. Bryan King of Green Forest in this month’s Republican primary, said during an April 19 debate in Huntsville that the Arkansas Press Association did not oppose Senate Bill 373 of 2017.
Among other things, the bill would have made communications between colleges and universities and the attorneys representing them exempt from the FOIA in cases where they previously had not been.
At the Huntsville debate, Ballinger defended his actions on SB 373, saying that he merely drafted an amendment aimed at improving the bill. He said the bill passed through the Senate with “no opposition” from the state press association.
“It was crap,” Ballinger said of the original bill. “It was a sorry bill that would make it where if you sent out an email, and you copied an attorney on it, it probably would be something that would be exempted from FOIA, and exempted forever.”
Ballinger said he amended the bill to make that sort of exemption “temporary.”
“I can understand that people would have a different opinion on the issue,” he said. “That’s reasonable. But I’m telling you, my motivation on it was to preserve more written records and to make it where over the long term we can actually hold them accountable.”
Madison County Record owner Ellen Kreth addressed the audience during a segment set aside for questions during the April 19 debate, saying the press association was “always opposed” to SB 373, and that it “truly would have gutted information we could have gotten to you as our readers.”
“The press association never did support Bill 373,” Kreth said.
“They didn’t oppose it,” Ballinger responded.
“We always opposed it,” Kreth said. “We always did.”
Ballinger was asked about that exchange on April 27, during a debate with King in Alma.
“It’s funny that the press … which is liberal, is being involved with my opponent’s side and helping him with this,” Ballinger responded. “The reason why I said the press association didn’t oppose the bill is, there was no opposition to the bill. To my committee, the state agencies committee, there was no opposition, no organized opposition. The press association didn’t do anything. … I don’t know if they supported it; there was no organized opposition. It comes to my committee, and it’s a crappy bill. It needs to be amended. I didn’t sponsor the bill. All I did was look at the bill and say that’s a terrible bill and I offered an amendment to the bill. I agreed with the idea — in fact, I would argue that it makes for better transparency. … The truth is I supported the concept of the bill because I thought it would increase transparency.”
A video recording of a portion of a March 1, 2017, meeting of the House State Agencies and Government Affairs Committee, chaired by Ballinger, seems to contradict Ballinger’s statements.
In the recording, Ballinger recognizes state Rep. Andy Davis, a Republican from Little Rock, to discuss the bill.
“Brief explanation, it’s a short bill,” Davis says. “The problem we have is that FOI is being used to circumvent a discovery process, attorney-client privilege, when the client is a public entity. This bill would protect that attorney-client communication under FOI.”
After asking if there are any questions from the committee and getting no response, Ballinger says “we do have the press association who is signed up to speak against. Does anybody else want to present anything on that?”
Later, Ballinger says “we have three people signed up to speak against.”
Tom Larimer, a Green Forest native who served as executive director of the Arkansas Press Association from 2004 until January 2018, can be seen in the recording, sitting behind Davis.
SB 373, and Ballinger’s role in promoting the bill, were discussed at length in a March 12, 2017, story in the Arkansas Democrat-Gazette. That story reported that “the University of Arkansas and Arkansas State University systems are helping state Rep. Bob Ballinger write an amendment to the Arkansas Freedom of Information Act that legal experts say isn’t needed and would cripple citizens’ access to public records.”
The Democrat-Gazette story goes on to say that the newspaper obtained copies of emails between Ballinger and attorneys and other university officials who “sent proposed language for Senate Bill 373.”
“The bill already would exempt attorney-client communications, which open-government proponents say is too broad and would conceal records that should be public,” the Democrat-Gazette story says. “The universities’ proposed language would exempt records involved in future or ‘threatened’ litigation, as well as pending litigation.”
The story describes an email from Ben Beaumont, University of Arkansas System senior director of policy, to Ballinger.
“Thanks again for your help on this, Representative. We appreciate you taking the time. We will get the language to you soon,” the story quotes Beaumont as saying in the email to Ballinger.
The story says Davis, the bill’s House sponsor, “expressed doubts about it,” after hearing from critics of the bill. The story says Ballinger “took Davis’ place promoting the bill in the house.”
The story includes comments from Larimer and from John Tull, a Little Rock attorney who specializes in First Amendment and free press litigation, criticizing the proposed changes to the FOIA.
The story also includes comments from University of Arkansas at Little Rock law professor Robert Steinbuch, who said that in a number of other states, citizens seeking records of crimes such as child molestation by school employees have been denied those records because of exemptions in those states’ Freedom of Information laws.
“Steinbuch suggested SB373 might be better named ‘The Child Molestation Protection Act,’ ” the story says.
The amended bill passed in the House of Representatives but ultimately was rejected by the state Senate.
Ballinger, who is an attorney, has done legal work for Ecclesia College in Springdale — the same college involved in the corruption trial of former state senator Jon Woods. Woods is accused of directing state money in the form of General Improvement Fund grants to Ecclesia in exchange for kickbacks. Oren Paris III, who had served as Ecclesia’s president since 1997, pleaded guilty in connection with the scandal in April and resigned his position, approximately a week after Ballinger told the Madison County Record in Huntsville that Paris was innocent. Paris is represented by Ballinger’s law partner, Travis Story of Fayetteville.
A Benton County man, Jim Parsons, filed a civil lawsuit against Ecclesia in February 2017, saying the college had failed to respond to Freedom of Information requests. Parsons contends that Ecclesia should be subject to the FOIA because it receives federal and state funding.
A response filed by Gregory F. Payne — another attorney with the Story firm — contends that Ecclesia is a church and is not subject to the FOIA.
Ballinger, who has acknowledged directing GIF money to Ecclesia but has not been accused of wrongdoing, addressed the topic of Ecclesia and the FOIA during the April 27 debate in Alma.
Ballinger, who has also done legal work directly for Ecclesia, was asked about the college’s refusal to release records. Ballinger has not disclosed any records related to his work for Ecclesia, except to say it was done “on the cheap.”
“It’s a private organization,” Ballinger said at the Alma debate. “Privacy is for private organizations. Disclosure is for government; however, comma, as soon as the trial is over, we’re OK with opening our records. There’s nothing exciting there, at all. So the college is happy to do that, to release the records.”
The jury in Woods’ trial in U.S. District Court in Fayetteville returned a verdict Thursday afternoon, finding the former lawmaker guilty on 15 of 17 counts. A former Ecclesia consultant, Randell Shelton Jr. of Kemp, Texas, was found guilty on 12 of 15 counts. Woods faces up to 30 years in prison. Shelton could be sentenced to 20 years.
The Carroll County News submitted an FOIA request to Ballinger on April 13, asking for records related to Ecclesia, the Northwest Arkansas Economic Development District (which administered GIF funds at the direction of state lawmakers), Paris and SB 373. John T. Vines, legal counsel for the state House of Representatives, responded via email on April 17, citing an exemption in the FOIA for “unpublished memoranda, working papers, and correspondence of ... members of the General Assembly.” Vines added that “some entries do not meet the definition of ‘public record’ as they do not ‘constitute a record of the performance or lack of performance of official functions.’
The newspaper submitted a similar request on April 13 to Story, who had been identified by Ecclesia as its custodian of records. That request asked for records of communications between the college and Ballinger in both his official and private capacities as well as bills and invoices received from Ballinger and/or the Story law firm and communications between Paris and Ballinger in both official and private capacities.
Story responded in a letter dated April 23, writing that he is not the custodian of records and that requests for such records should be sent to the Ecclesia College Administration.
“I believe that some of the documents are going to be outside of applicability of the FOIA statute, and I believe that you are also requesting documents which would contain attorney-client privileged information,” Story wrote.
An FOIA request was sent to the Ecclesia College administration on Friday, April 27, via certified mail. A return receipt indicates the request was received on Monday, April 30. The FOIA stipulates that requesters must receive a response within three business days. As of Thursday afternoon, Ecclesia had not responded to the request for information.