After three months of fighting with the Washington DC-based Checks and Balances Project over records of an Arizona Corporation Commission member’s text messages, emails and call logs, a fellow commissioner was fed up.
“When does too much become too much?” Commissioner Bob Burns wrote in an email to Jodi Jerich, executive director of the Corporation Commission.
Burns proposed the commission compile a report on the man-hours spent and labor costs of complying with public records requests – and then take the matter up with the Governor’s Office and legislative leadership in the hopes of changing the law to restrict public records access.
He suggested a good starting point for changing the public records law would be to model the law “after the method used to acquire a search warrant.” Obtaining a search warrant requires a judge’s approval.
And so began the latest attempt to restrict access to public records in Arizona, a strategy likely to be pursued during next year’s legislative session.
The Checks and Balances project sought Commissioner Bob Stump’s text messages, emails and a log of all his calls in an attempt to prove he had acted as a go-between for a “dark money” independent expenditure committee with ties to Arizona Public Service and candidates for the Corporation Commission, which regulates the utility giant.
But after receiving a portion of those public records – not including the contents of hundreds of Stump’s text messages with APS executives and two Corporation Commission candidates that APS supported in the 2014 election – Checks and Balances kept pushing.
Commissioners said they had no way to access the actual texts. They had been deleted from Stump’s business cell phone, which he had thrown away and replaced. Checks and Balances countered with an offer to hire a forensic expert who could extract the deleted texts from the new phone. Then the group threatened to sue.
On June 19, Checks and Balances Project sent another public records request, this one asking for any communications concerning the process the commission used to hire a lawyer to deal with the records requests.
Burns’ email, written on the same day, was obtained by the Arizona Capitol Times through a public records request.
Burns later told the Capitol Times that the requests by the Checks and Balances Project and the commission’s efforts to comply were “the straw that broke the camel’s back,” leading Burns to suggest that it’s time to amend the state’s public records laws.
He said he hasn’t begun digging into the details of what the changes in the public records law should look like. But he suggested some kind of judicial review and preauthorization process for all public records requests to ensure they are not overly broad. He accused the Checks and Balances Project of conducting a “fishing expedition” and invading Stump’s privacy.
“The police don’t come into your home without a warrant. There’s limitations and requirements to be met,” he said.
Burns argues that lawmakers should also consider the costs to the public agencies in fulfilling public records requests. He suggested that those who request public records potentially should be on the hook for the cost of staff locating, compiling, reviewing and redacting the records.
The commission hasn’t yet calculated the man-hours or labor costs of the Checks and Balances’ request. But Burns said he has seen the amount of time the commission’s lawyers and his policy adviser have had to spend on complying with records requests, and it’s “over the top.”
“Our legal staff has been overburdened. My policy adviser has spent numerous man-hours,” he said.
A NEW ERA FOR PUBLIC RECORDS
Burns’ reaction to the project’s threat was exactly what Republican strategist and lobbyist Matt Benson, and many others, expected.
On June 30, Benson wrote on his Twitter account that the “thuggish tactics” of the Checks and Balances Project would result in an attempt to scale-back the Arizona public records law.
Benson said the group crossed a line when it posted Stump’s text log online. The log including the time and date of many texts between Stump and APS officials, but also listed texts between Stump and his mother and other personal contacts, whose phone numbers were posted online.
Soon Arizona Republican Party Chairman Robert Graham was attacking the project. Graham called its records request part of an “intimidation campaign against Stump and the commission” and said Checks and Balances was abusing the public records law “to harass and bully a respected elected official they don’t like.”
Benson, a former reporter, said based on what he knows about how legislators view public records laws, he figured the fight between the Corporation Commission and the Checks and Balances Project would illicit a reaction from lawmakers.
“I wouldn’t be surprised to see an attempt made to tighten things up a bit,” he said.
And sure enough, the text message battle started the wheels spinning with Republican Sen. John Kavanagh of Fountain Hills.
Kavanagh said historically, public officials have made public comments, and off the record comments. But in today’s day and age, it seems every side comment elected officials make is now a matter of public record.
“I think we have to draw a reasonable line between when a public official, even discussing public things, can say something off the record to somebody as opposed to having every utterance in every venue be a public record. … It’s becoming concerning,” he said.
He said he doesn’t know where the line should be drawn, but with human communication increasingly tapped out on smartphones, new issues arise about “personal privacy and the right to discuss and ruminate and try to gather facts off the record.”
“We’re going from written things (being a matter of public record), to emails, which are electronic written things, and now to text messages, which are very spontaneous. We’re slowly approaching the point where whispers are going to be conceivably public records. … At what point do you suppress all discussion on issues, which is not going to be good for searching for the truth and the best policies?” Kavanagh said.
THE BANE OF CITY HALL
Kavanagh had already been eyeing the public records laws when Stump’s text messages became front page news. He had been thinking about a way to crack down on a Yuma man long known to lawmakers for his excessive records requests against the city.
Jack Kretzer is the bane of Yuma City Hall. He files hundreds of records requests per year, and city officials contend he does it just for the sport of harassing elected politicians. For the past two years, lawmakers have introduced legislation to crack down on “burdensome requests.” They acknowledge the measures are aimed squarely at Kretzer.
The measures have failed due to opposition from Yuma Tea Party leaders, but Kavanagh is working on a new bill for 2016 that will attack the issue from a different angle. He wants courts to label people like Kretzer “vexatious public records requestors.”
The bill Kavanagh is preparing would go after “problem requestors” by labeling them vexatious. If a requestor were labeled vexatious by a judge, then the person would have to go through the courts to approve any further records requests.
“The criteria might be having a history of filing multiple requests that are vague where no follow up action is ever taken, where the person couldn’t explain a reasonable purpose for using the information,” he said.
Currently, those who make requests don’t have to explain why they want public records.
David Cuillier, a professor at University of Arizona’s School of Journalism, said a judicial review process would put up more barriers between citizens and the government and raises questions on who could be considered “vexatious.”
“Who’s to decide who’s a hero and who’s a pain in the rear-end? It shouldn’t be the government. … You’re just imposing another wall of hassle for a person who already has the system stacked against them,” Cuillier said.
Other states sometimes use an ombudsman or attorney general’s office as a mediator when an agency feels overburdened by requests, Cuillier said. But adding another, more complex layer wouldn’t be good for requestors or the government, as courts are already busy.
“We already have a system of judicial review – it’s called a lawsuit,” Cuillier said.
But Kavanagh’s planned measure wouldn’t affect the Checks and Balances Project, which has made “very specific requests,” he said.
CHARGING FOR RECORDS
Kavanagh agreed with Burns that the costs of fulfilling the requests is something lawmakers should look at as well. He said when records meant paper copies, government agencies would charge a per-page fee, which tended to discourage massive requests.
“But now that everything is digital, that per-copy charge is gone. But what isn’t gone is the requirement for staff and sometimes high-priced attorneys to comb through the records and redact information which is (exempted from public record),” he said.
David Bodney, a media attorney with Ballard Spahr, has heard proposals to charge citizens for the cost of government compiling public records before. In 2013, lawmakers proposed legislation to charge citizens $20 per hour to cover staff costs of compiling public records.
“The issue has come up and been shot down in the past, precisely because it would undermine the public records law completely,” Bodney said.
He said it makes no sense to charge requesters for the time it takes to comply with a public records law request, because the taxpayers are already paying the record-holders’ salary, and public records already belong to the public.
Even the lawmaker who proposed the bill to charge requestors for the staff time associated with compiling the records now says it was a bad idea.
Republican Rep. David Stevens of Sierra Vista said he held a series of stakeholders meetings in 2013 to try to find a way to address the costs on government agencies of large or excessive records requests. If that’s what Burns is considering, he said, it probably won’t happen.
“I tried that two years ago and it didn’t move forward. There was just too much opposition because we’re government and we’re supposed to be transparent at any cost,” he said.