Larry, I'm always cautious on reports like this because public records law
varies considerably (and in surprising ways) from state to state, and the
press - regardless of bias or lack thereof - generally doesn't "get it"
(confusing, for example, federal law with state).  Arkansas law has the
following exemption:

(7) Unpublished memoranda, working papers, and correspondence of the
Governor, members of the General Assembly, Supreme Court Justices, Court of
Appeals Judges, and the Attorney General;

Unclear to me is whether this is an "exemption from disclosure" (as such a
clause would be interpreted in Oregon), or an "exemption from the public
records law". The law does not provide a clear answer, and the definition of
"public record" is in this law. Its not clear to me what "unpublished"
means.

Note that, as of 2005, Arkansas had no retention requirement to match its
FOI law of 1967. This requirement was added in 2005 by Act 918 of the
Regular Session (which I assume was passed, as the general retention
schedule required is posted for all to see). Of course, a public access law
without a retention requirement is essentially a toothless law, which is
recognized in the 2005 act.

The resulting Arkansas General Retention Schedule (which is not very long)
defines "Correspondence, Substantive" as having a 4 year retention. This is
a very short retention for correspondence of this nature, and does not
appear to recognize the continuum between archives and records management.
This, of course, would be the nature of much of the correspondence coming
out of the governor's office.

I would not characterize these requirements as being characteristic of a
strong public records environment, given the above. My guess is Mr.
Huckabee's actions, right or wrong,  reflected that climate.

Being a strong advocate for transparency and accountability in government,
one has to ask oneself why do we continue to see, with depressing
regularity, continued efforts to undermine such values, regardless of party
affiliation or even politics. Is it the nature of politics in a "gotcha" age
of exploding technologies? Or, as records managers and archivists, is there
a way that we can provide advice in the development of laws that meet the
goal of transparency and accountability while allowing for the free and
unfettered flow of ideas? Because, while all of the focus of the press,
public, and elected officials is on access, the often neglected core of
these laws is in the maintenance details - ie retention and how public
records are defined. Its here that the "hairs get split".

One area I believe represents considerable tension is the conflict between
"access now" and "access eventually" - at what point does "access now"
impact the ability to govern; at what point does "access eventually"
undermine accountability? Is there a way of balancing these two demands? I
think striking the right balance here would prevent situations, such as the
one alleged with Mr. Huckabee, where even "access eventually" is undermined.

Arkansas's law has some admirable qualities - it is short and
understandable, and I like the idea of linking "public record" with
expenditures of public funds. It appears, however, that there are areas that
could be improved - as is the case with many such laws, including Oregon's.
"Getting this right" is very difficult, because, as with so much related to
government records, the stakeholder interests are large, varied, and may
reflect considerable conflict.

-- 
Dwight Wallis, CRM
Multnomah County Records Management Program
1620 SE 190th Avenue
Portland, OR 97233
ph: (503)988-3741
fax: (503)988-3754
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