Getting around public records law

When one Democratic state senator was arrested at the start of August, his colleagues snapped into action. 

Within 24 hours, the 13 other members of the Senate Democratic caucus released three separate statements –one expressing confusion at Tony Navarrete’s arrest, one sharing resources for sexual assault victims and a statement of faith in the criminal justice system after they learned the charges against him and one calling on Navarrete to resign after they learned the details of his alleged crimes. 

Through that day, and the four more that followed before Navarrete’s eventual resignation, Senate Democrats stayed in touch on a messaging app and through phone calls, texts and meetings. But those messages, about one of the most critical issues the state Senate faced this year, remain secret. 

A public records request for all communication the 29 remaining senators sent or received between Navarrete’s August 5 arrest and his August 10 resignation yielded new copies of press releases and more than two dozen emails from constituents – including several unrelated screeds about former President Barack Obama’s birthplace, Covid vaccines and China that only appeared to make the cut because the writer addressed them to “Arizona Legislature and Pedophile Navarrete.”  

The Senate’s public records attorney is still reviewing screenshots provided by three senators, but so far only one text message made the cut – on the morning of August 5, several hours before police arrested Navarrete but after his alleged victim recorded him admitting to and apologizing for sexually abusing the boy, Senate Minority Leader Rebecca Rios sent Navarrete a text message observing that a meeting they were in cut off. 

“I’ve got a (sic) run into another meeting but let’s you me and Jeff talk and figure out where we should head,” Rios wrote. 

“Agree. I’m sad it cut you off,” Navarrete replied. 

The Jeff mentioned is presumably Senate Democratic chief of staff Jeff Winkler. Rios did not return a call from Arizona Capitol Times. 

Difficulty obtaining records comes down to two main issues. First, while Senate staff can search state-issued emails for responsive records, obtaining text messages or exchanges through social media requires elected officials without state-issued phones to save and send the messages themselves. 

They’re supposed to follow the law. But in practice, First Amendment attorney Dan Barr said, elected officials frequently use their private phones to avoid complying with state records laws. 

As of August 25, 22 of the 29 senators had responded to messages from the Senate’s public records attorney about the Arizona Capitol Times’ request. Half said they had no records to provide.  

Some senators shared messages outside of the time frame – Sen. Lela Alston, D-Phoenix, said she sent over a text she sent Navarrete on August 4, wishing him well with his recent Covid diagnosis, and fellow Phoenix Democrat Christine Marsh, who was recovering from cancer-related surgery when Navarrete was arrested, only had a text message from a constituent asking what happens next following his resignation.  

Others sought to comply by sending their text exchanges and WhatsApp messages, and encountered a second key issue in public access to government records: legislative privilege exempts lawmakers from sharing many records, including records related to their deliberative process to pass bills or discipline one of their own. The Senate’s public records attorney said still other messages were protected by attorney-client privilege – both caucuses have multiple attorneys on staff.  

Some officials say they go out of their way to avoid creating documents that could be considered public records. 

“The way I see it, any message that deals with a work-related issue is subject to release,” said Sen. Martín Quezada, D-Phoenix. 

To that end, Quezada said, the only messages he exchanged about Navarrete were on a group WhatsApp thread, and he asked Senate Democratic staff to forward them to the public records attorney. Quezada said he limits his participation in various group chats to confirming meeting times, and he tries to have any substantive conversations over the phone or in person. 

That serves two purposes, he said. It makes it easier to avoid misunderstandings, and it keeps their deliberations away from prying eyes. 

“I always want to be careful about the public records I create,” he said. “There are times that I intentionally create public records, and then there are times when I’m talking about strategy with staff that I don’t want to create public records.” 

As a school board member, Quezada hears regular reminders about public records laws and how they apply to elected officials. At the Legislature, most of that training is limited to a section during a new member orientation when lawmakers are first elected. They don’t have to repeat the training during future sessions. 

Sen. Victoria Steele, D-Tucson, said it would be helpful for lawmakers to receive regular refreshers on that training, including how lawmakers should preserve and prepare the records in their possession. She had to get help from her assistant to figure out how to find and capture screenshots of all the messages she exchanged and get them on to a jump drive to give to the Senate’s records attorney. And something went technically wrong the first time, so while Steele said she wanted to comply with a records request, she’s still trying to figure it out. 

“My brain doesn’t work as it used to when I was in my 20s,” Steele said. “There are legislators that are older than me that might be like, ‘How do you work this thing?’ There’s a bit of a digital divide or digital catching-up process that some of us do better than others, but it’s hard to keep up with it.”  

She remembers once sending a group text to members of a local governing body with a question she needed an answer to right away, only to have one of the members call and tell her they couldn’t respond in a group text because doing so would create an illegal quorum. Lawmakers, who regularly participate in group text messages and believe in some cases that their work communications can be kept private, could use more guidance on their responsibilities under Arizona open meetings and public records laws, Steele said.