OLYMPIA, Wash. — Tandem bills introduced in the Washington State legislature would require public records seekers to jump through an extra administrative hoop before they file a lawsuit alleging violations of the state’s Public Records Act.
The sponsors of the bipartisan-backed House and Senate measures say their goal is to root out frivolous or harassing public records requests. But it comes as some Washington lawmakers have also begun asserting “legislative privilege” to withhold certain records, despite a Washington Supreme Court 2019 ruling that lawmaker records are subject to disclosure.
Open government advocates have sounded the alarm.
“These two bills … they take your breath away,” the Washington Coalition of Open Government tweeted.
As legislatures convene, similar efforts to regulate public records access are happening in several states amid a pandemic-related rise in records requests, intense elections scrutiny and low trust in government.
“’Tis the season,” said David Cuillier, a journalism professor at the University of Arizona and president of the National Freedom of Information Coalition. “Legislative sessions are going [on] and this is when we get a slew of exemptions and secrecy laws cropping up.”
In Arizona, Republicans in the majority recently adopted new records retention rules that call for the deletion of lawmaker emails after just 90 days and a purge of calendar entries and text messages whenever they are deemed no longer relevant. There are some exceptions, including for records related to a “litigation proceeding.”
The Senate version of the rules also exempts from public inspection any message sent or received from private electronic devices belonging to lawmakers, as well as legislative staff, interns or contractors.
The new rules sidestep the state’s Public Records Law, which generally requires the preservation of records. They also follow a legal fight over access to legislator email and text messages related to a Republican-led audit of the 2020 election.
The move by Arizona Republicans has drawn criticism and national media coverage.
“Those records have important information about the legislative business that’s conducted. The public has a right to know what is there,” Gregg Leslie of Arizona State University’s College of Law told the Arizona Republic.
Democrats also blasted the rules change.
“Saying the law doesn’t apply to us is a terrible message to send to the public,” House Minority Leader Andres Cano (D) said in a floor speech.
But in an interview with Pluribus News, state Senate President Pro Tempore T.J. Shope (R) defended the new rules as consistent with how the Senate has operated in the past.
“The rule change, frankly in my opinion, puts into rule what has been standard practice or the custom of the state Senate,” Shope said, adding that the new records retention schedule also mirrors that of Arizona’s court system.
Lawmakers also changed the rules governing access to records in Missouri. A judge there recently upheld as constitutional a 2019 House rule that lets lawmakers withhold correspondence with constituents, as well as records that “contain caucus strategy.” Adoption of the rule followed passage in 2018 of a constitutional amendment that established the public’s right to legislative records.
Beyond rules changes, state legislators are also looking to amend public records laws.
In New Mexico, a Senate committee advanced a bill to block the release of the names and resumes of candidates for executive-level government positions, except for the top-three finalists. Sen. Bill Tallman (D), the prime sponsor, said disclosure puts government entities at a competitive disadvantage when recruiting for top positions.
Tennessee Senate Majority Leader Jack Johnson (R) introduced legislation to lock down 911 calls and law enforcement photos in non-criminal cases, after the recent death by suicide of country singer Naomi Judd.
Last year, Florida Gov. Ron DeSantis (R) signed a law shielding from disclosure the names of finalists for university president positions.
The proposed bills in Washington State would create a new step in the appeals process when a requester believes an agency is improperly withholding records. Before filing a lawsuit, the requester would be required to submit an administrative appeal to the agency holding the records.
Only after that process is exhausted could a requester sue, but not before signing an attestation that the request for records was not made for “any improper purpose” — meaning to harass the agency, impede government operations, or for the purposes of leveraging a monetary award.
Sen. Ann Rivers (R), the sponsor of the Senate bill, told Pluribus News that she is not trying to tamp down access to public records, but instead is responding to what she views as a burgeoning cottage industry of people who generate public records requests for the sole purpose of winning a legal settlement.
“It’s an easy payday for them,” Rivers said. “The PRA should be about shining a light on government, not lining the pockets of people who have figured out how to weaponize it.”
But open records advocates have denounced the proposed change in law as an additional obstacle to records and said it is the wrong way to address nuisance requests.
“Trying to distinguish between who’s a legitimate requestor and who’s an illegitimate requestor .. is, I think, a real problem,” said Mike Fancher, president of the Washington Coalition of Open Government.
Instead, Fancher said, agencies should focus on maintaining and organizing records and making them available in the spirit of the state’s 5-decade-old, voter-approved sunshine law.
“This is not a way to resolve disputes, this is a stiff arm to requestors,” said Fancher, a former Seattle Times executive editor.
Cuillier, the Arizona professor, said public access to records has eroded over the past decade. He recently analyzed data from MuckRock, a public records repository, and found that in 2020 18% of requests under the federal Freedom of Information Act were successful compared to more than 50% in 2010.
“It’s a hard battle and the forces are stacked against [requesters] and every year we lose ground, every year secrecy gets stronger and stronger, and the data supports that,” Cuillier said.
In 2019, Cuillier ranked the states based on compliance with public records requests. Idaho took the top slot followed by Washington, Nebraska, Rhode Island and Iowa. The bottom states were Virginia, New Jersey, Mississippi, Arkansas and Alabama.
Alabama, though, could be poised to move up the list. Gov. Kay Ivey (R) recently issued an executive order aimed at increasing transparency and access to public records. Among its provisions, the order requires state agencies to have a public records page on their website, appoint a public records coordinator and respond to standard requests within 15 days.
Bills introduced this year in Oregon, Tennessee and Virginia also aim to strengthen access to public records.
“From day one, a top priority of mine was to restore our people’s faith in their state government,” Ivey said in a statement. “Access to public records is essential to guaranteeing transparency in government, and I am proud to sign this executive order that improves this process as a whole.”