Stonewalled: Legislature redacts, delays and denies access to messages

Four months ago, the Arizona Capitol Times set out to learn how much of the state’s business is being conducted on smartphones, via newer technologies like text messages, social media chats and third-party messenger applications.

Under the state public records laws, we requested electronic messages sent among top state elected officials of both parties and their top staff. The request covered only communications about state business, and only during a period of about a month, from when lawmakers debated and approved the state budget to the close of the 2015 regular legislative session.

As it turned out, lawmakers use text messages and third-party messengers to talk to each other about state business all the time.

But getting access to those messages, which most experts and public officials agree are covered under the state public records laws, can be extremely difficult.

It took the Capitol Times months of relentless reminders to get ahold of even the most trivial of those texts – such as a message revealing that Republican Rep. Justin Olson likely ate a turkey sandwich for lunch on March 3.

Legislative Democrats and the Governor’s Office have largely provided the records, with some exceptions and many redactions.

But after four months, House Republican leadership has only provided a fraction of the requested messages, and only after dozens of follow-up emails, many phone calls and discussions of legal action.

And Senate President Andy Biggs has rejected the request altogether.

Biggs alone argued, through his spokesman, that text messages among elected officials about state business are not public record – as long as the communication doesn’t happen on a state-provided phone.

The state doesn’t provide lawmakers with phones, and public records attorneys say that’s clearly not how the law works, anyway.

Experts say the responses by House and Senate leadership illustrate the vast amount of time and effort it takes to access these records, barriers that would be insurmountable to the average citizen. They argue the stall-tactics and denials create a roadblock to government transparency.

And they say if lawmakers don’t turn over the records in a reasonable timeframe, they’re breaking the law.

“If they’re dragging their heels, they’re breaking the law,” said David Cuillier, director of the School of Journalism at the University of Arizona and a public records law expert. “Our lawmakers are breaking the law, which is ironic.”

Dan Barr, Arizona’s top First Amendment and public records attorney, said Biggs, who is also an attorney, is likely aware that the public records law requires he provide the records.

But unless he faces a lawsuit, there are no consequences to ignoring the law.

“The Republican leadership in the Senate is, frankly, just daring you to sue them,” Barr said.

THE MESSAGE, NOT THE MEDIUM

The rise of smart phones, text messages, social media and third-party messenger applications represents a new frontier of electronic communication that state government in some ways is, and in some ways is not, prepared to handle.

Twenty years ago, text messages had just been invented. There was no iPhone message, no G-chat, no Facebook messenger, no Twitter direct messages, no WhatsApp and no Snapchat.

Arizona public records laws, which date back to before statehood, don’t mention any of these modes of communication. Yet the law applies to all of them, experts say.

State public records laws also don’t mention email. But emails from public officials or employees discussing public business, even on their personal email accounts, are considered public records under state law and are routinely requested by reporters and others and provided with little pushback from elected officials.

Lawmakers are told in their introduction to public life that their “electronic messages” are public record, and warned to not put anything in writing that they don’t want to see in the newspaper.

And while most experts and even public officials agree that text messages fall under the same “electronic messages” as emails, and are subject to the same public records laws, that presumption has never been tested in court.

But courts that have considered similar decisions have referred back to one overarching principle, according to Peter Gentala, the lead attorney for the House Republican caucus.

That principle is that the message, not the medium, determines whether an electronic message is public record. That means regardless of whether a message is sent on a personal or state-issued device, if the message is about public business, it’s generally public record.

“We can only guess how the courts would treat texts, based off of decisions on things like email and metadata,” Gentala said. “But that being said, the general principle that seems to be consistent is (public records are determined by the) content, and whether it relates to the business of government.”

PERILS OF DELETION

Gentala points out that even if the law treats texts and emails the same, state government treats the two very differently.

For example, lawmakers and the Capitol staff are issued an official state email address to conduct their business. But they’re not issued a state cell phone. Likewise, the state has servers backing up those emails, but no way to back up lawmakers’ personal cell phone messages.

“A long time ago, state government decided that email was an essential form of communication, and (the state) has to maintain those servers,” Gentala said. “So the ability, not just the responsibility, but the ability to maintain (text and email) messages is totally different.”

House Democratic chief of staff Keely Varvel found out the hard way that unlike emails, once a text is gone, it’s gone.

Varvel was the only holdout among Democrats asked by the Capitol Times to turn over their business-related texts. She said she wasn’t trying to hide anything, and would have provided the records, except she had erased all her text messages just a few weeks prior to the request.

Varvel said her phone didn’t have enough memory to take any more photos, so she deleted her texts to free up space.

“We actually called Verizon to see if they had an archive of them or something, and they don’t. They basically said they don’t feel it’s their responsibility to archive it,” Varvel said.

But if text messages are public records, then deleting them could be against the law.

That fact had House Republicans re-evaluating how they plan to deal with text messages in the future, and looking into technology that would allow them to back up public records on lawmakers’ cell phones.

As part of the records requests, the Capitol Times also asked for any policies related to text messages and recordkeeping.

The policies have few, if any, mentions of text messages or social media, though have plenty of references to “electronic” modes of communication. Trainings on public records for public officials typically don’t explicitly mention texts or social media either.

After coming under fire from a solar energy advocacy group earlier this year, the Arizona Corporation Commission purchased software that would allow commissioners to plug in their phones every week or two and input messages. The program provides legal staff a backup to the phones themselves for easier, faster recordkeeping and records request responses.

BROAD USE OF LEGISLATIVE PRIVILEGE

In all, the Arizona Capitol Times requested text messages from the phones of 12 public officials and staff members and received at least some messages from six of those phones.

But almost all the message threads were heavily redacted.

Senate Democrats were the most heavy-handed in their redactions. Of the nearly 1,000 texts among Senate Democrats for the month, roughly 60 percent were redacted.

Of all the texts received from all sources – which constitute only half of those requested – about half were redacted.

There are two main reasons given for why the texts were blacked-out: They didn’t relate to public business, or they did relate to public business.

The latter is called “legislative privilege.” Although the term never appears in law, lawmakers frequently cite it to deny or redact all manner of records requests.

Gentala, the general counsel for House Republicans, said legislative privilege covers communication about legislation, and allows policymakers to undertake a true deliberative process and seek out the opinion of others, without having to fear backlash for talking about unpopular ideas.

If legislative privilege didn’t exist, lawmakers “might be less inclined to seek full and frank communications from their staff, for example, if they know those communications are going to be 100 percent out there in the public,” he said.

He cited the Arizona Court of Appeals ruling in Arizona Independent Redistricting Commission v. Fields as the “the signature legal opinion” on legislative privilege.

In that ruling, the court stated that the privilege does not apply to political or administrative discussions, and only applies when such matters are “an integral part of the deliberative and communicative processes” relating to proposed legislation and “when necessary to prevent indirect impairment of such deliberations.”

The court noted that legislative privilege is not intended to “cloak all things in any way related to the legislative process.”

But that’s how it’s often used, Barr said.

“Legislative privilege is a lot narrower than maybe what these people are claiming. It certainly doesn’t allow a lawmaker to withhold all his text or email messages,” he said.

LONGER THAN EXPECTED

The bulk of the requests to the House GOP have largely gone unanswered, though spokeswoman Stephanie Grisham said they are continuing to “work through the remainder of the request.”

The House GOP previously asked that the scope of the request be narrowed to get a faster response, but the Capitol Times declined to do so because the request was already restricted to certain lawmakers over limited dates.

“Because the request was so broad, and between so many people, that’s just going to take longer,” Grisham said.

She said House Republicans have shown good faith in their intent to comply with the requests, which required downloading messages from three phones, and have faced unique circumstances that have caused the request to take longer than expected.

Grisham said this was the first records request of its kind the House had seen, and that the House GOP staff didn’t even know how to get the messages out of the phones.

The first set of records they provided were actually just a picture of a lawmaker’s cracked phone screen opened to the relevant texts. The metadata on those photos of the phone show they were created on August 10, though they weren’t released to the Capitol Times until almost three months later.

Also, legislative attorneys were busy with the lawsuit over education inflation funding, and were unable to redact the documents until that was settled, Grisham said.

She noted other reasons: Lawmakers have been mostly out of session since the request was filed in July, and their staff can’t extract the messages without access to lawmakers’ phones.

But House Republican chief of staff Tami Stowe hasn’t provided her text messages in the four months since the request was filed, either, even though she has been at the Capitol.

Arizona’s public records statutes dictate that records must be turned over promptly, and if they aren’t, they may be considered denied.

It has been 126 days, as of press time, since the Capitol Times first sent its public records request.

And it’s not just the House Republicans who are taking so much time to finish off the records request.

While Gov. Doug Ducey’s office complied with the bulk of the Capitol Times’ request by October 2, it still has not turned over text messages from Ducey’s chief of staff, Kirk Adams.

Adams, a former speaker of the House, is the main point of contact at the Governor’s Office for many lawmakers.

‘STACKED AGAINST THE CITIZEN’

In a denial of the Capitol Times’ records request, Senate GOP communications adviser Mike Philipsen, speaking on Biggs’ behalf, appears to rely on the fact that Biggs’ phone is not publicly issued.

State law requires a records custodian to cite a specific reason for denying a public records request. Philipsen stated simply that the messages are “not public records” and that the Senate “does not provide state-issued phones to any of its members.”

When asked to clarify why the request was being denied, he responded six days later with the same email, but this time, he underlined parts of it.

Biggs stands alone in the school of thought that his texts are automatically exempt from public records laws – at least among public records attorneys, the other three caucuses of the Legislature, Ducey’s office and the Corporation Commission.

But to counter Biggs’ opinion of the law, the onus falls onto a citizen to take the government to court and try to fight for those records, Cuillier, the UofA journalism professor, said.

“Unfortunately, the system is stacked against the citizen. Their only recourse is to hire an attorney and sue (the government) in court. … It’s really no wonder they thumb their noses at the public, because they think they can get away with it,” Cuillier said.

THE NATIONAL TREND

The issue of elected officials’ text messages exploded in Arizona earlier this year, when a clean energy watchdog group requested texts from Corporation Commissioner Bob Stump.

The texts showed the commissioner regularly texted with a member of the state’s utility consumer group, as well as Arizona Public Service representatives, leaders of dark money organizations and solar representatives.

The Corporation Commission hasn’t said the messages aren’t public record. Still, the public hasn’t seen the messages. Stump deleted some of them and threw away his old phone. The watchdog group, Checks and Balances Project, recently sued the commission to gain access to Stump’s current phone, claiming they could extract metadata that may include the texts they want.

Nationally, electronic records continually come up in courts, which often conclude that it’s the message that matters, not the medium, Cuillier said.

In Washington state, that state’s Supreme Court ruled in August that text messages a public employee sent related to his job were subject to the state’s public records laws and should be publicly accessible.

The Mississippi Ethics Commission ruled last year that text messages a mayor sent on his personal phone related to public business were subject to public records statutes, even though the request for those records was “inexact and broad.”

“It is the purpose or use of the text message that is determinative,” not the ownership of the device, the commission wrote.

The Chicago Tribune sued Mayor Rahm Emanuel’s office to get access to messages sent via personal email and text that related to public business. Emanuel’s office hasn’t complied fully with multiple records requests and hasn’t been preserving messages, the Tribune alleges in its lawsuit.

Two Arizona Supreme Court cases, Griffis v. Pinal County and Lake v. City of Phoenix, back up the case for text messages as public records. In the Lake case, the Supreme Court decided metadata embedded in a public document constituted a public record. In the Griffis case, the Supreme Court decided emails are subject to public records laws if they have a “substantial nexus” to government.

John Wonderlich, policy director of the Sunlight Foundation, a national government accountability nonprofit, said the trend nationwide is for government officials to shift to personal emails or texting on personal phones in attempts to skirt public records laws.

Many states have had battles to explicitly define what’s included in public records laws, either in the courts or legislatures, Wonderlich said.

He argued that if people don’t defend public records laws in the face of officials’ attempts to flout them, the laws will slowly weaken.

“If it’s not litigated and people aren’t vigilant about their rights … (public records laws) will be either rolled back or non-responses will become the norm,” Wonderlich said.

And without strong records laws, there will be “a whole bunch of really important stories we won’t be able to tell.”