by Jim Nintzel
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.