The new rules will significantly limit the public release of lawmakers’ communications. State senators will not have to disclose all text messages sent on personal devices, even when it comes to state affairs. For Senate and House lawmakers, emails and other documents will be destroyed after 90 days — in many cases, long before members of the public know to request them.
“I think it’s mean-spirited, vindictive, and contrary to the obvious interests of government transparency and accountability in Arizona,” said David Bodney, an attorney who represented the Republic of Arizona in public litigation over the review of the 2020 elections.
Usually, Arizona officials should retain most public records indefinitely and release them when someone requests them. Building on a recent state Supreme Court ruling, lawmakers on Tuesday and Wednesday passed rules that set limited standards for when they must make records public. Capitol Media Services first reported the rule changes.
Last month, the Arizona Supreme Court ruled that it does not have the power to enforce the state’s open meeting law as it relates to lawmakers. The ruling appeared to pave the way for the legislature, narrowly led by Republicans, to set its own transparency policies, which it did quickly.
Liberal group American Oversight used the Arizona Records Act to uncover how Republicans conducted the 2020 election review, which was overseen by Cyber Ninjas, a secretive group that had no never analyzed an election before. Without those records, the public wouldn’t know as much, said Heather Sawyer, executive director of American Oversight.
“It seems they are just trying to find a way to be able to operate in the dark, which is incredibly undemocratic. It’s frankly un-American,” Sawyer said. The rule change benefits all lawmakers at the expense of ordinary voters of all political stripes, she said; Arizonans won’t be able to know what lawmakers are doing behind the scenes, whether they’re Democrats or Republicans.
“It’s one of the things that sets us apart from autocracies, that we hold our public servants accountable to the people they serve,” she said.
Brendan Fischer, the deputy executive director of the Documented group, argued that the rules will “further obscure the roles of far-right domestic groups” that seek to influence the legislature.
Members of Congress have long exempted themselves from the federal Freedom of Information Act, so their emails, text messages and other communications are generally not available to the public. Many states have taken a different approach and made their lawmakers subject to registration laws so the public can better judge the work they do.
The precise rules differ by state, with records readily available in some states and difficult to obtain in others. Some states provide loopholes for lawmakers that aren’t available to other officials. For example, in Wisconsin, lawmakers aren’t required to keep their records, allowing them to delete sensitive emails and text messages before anyone asks for them.
The rule change in Arizona will restrict public access to lawmakers’ correspondence under a law that dates back to 1901 and aims to strengthen public access to information about the workings of elected officials and officials.
The law allows voters, journalists, lawyers and others to request paper documents, emails, text messages, video and audio recordings, government reports and communications about state-funded activities, regardless of ‘device. Generally, the public has the right to examine or obtain the documents, but sometimes they must pay for them.
The move comes after Republican lawmakers, who hold a one-vote majority in each chamber, responded to requests for records from state lawmakers and Capitol aides involving efforts to void the 2020 election or challenge the results.
Public records have helped Americans better understand how some people tried to cast doubt on the validity of Biden’s victory. Emails, text messages, video recordings and other information from lawmakers – collated by journalists and advocacy groups – provided a thorough examination of efforts to delegitimize Biden’s victory, as well as counter-efforts by Rusty Bowers, the former speaker of the Arizona House, to enforce the will of the voters.
“I think it’s undeniable that the whole Cyber Ninjas thing and the other aspects of how Arizona officials have handled election issues are of great public interest, so it’s hard to imagine they are doing anything other than trying to prevent this from happening again,” said Gregg Leslie, law professor and executive director of the First Amendment Clinic at Arizona State University.
Kim Quintero, spokesperson for Senate Republicans, Thursday claimed the rule change was not driven by political fallout from the 2020 election or the consequences scrutiny of the ballot, which ultimately confirmed Biden’s victory.
“We think that’s best practice,” Quintero said. “We don’t do anything different from what the current courts and the (Attorney General’s) office do.
“Cyber ninjas were not addressed when making the rules.”
Calli Jones, spokeswoman for the Senate Democrats, said the rules were “irresponsible” and unnecessary. She said they were drafted without input from Democrats, who make up nearly half of the legislature.
“Our caucus recognizes that they were undemocratic and a decision to end opposition to Republicans,” Jones said.
Other rule changes in the House make it harder to overcome the speaker’s opposition to raising questions. The the changes also allow GOP leaders to sue for “any infringement” on the powers or duties of the legislature, without consultation with other members, and limit debate to the ground on legislation.
In a speech on the floor this week, Andrés Cano, the House Democratic leader, said the rules, which came with little notice, limit debate on critical issues. He said they will “steal the public” of important information about issues affecting their lives.
“How many trials can we expect?” Canon said. “Is it going to be ‘fraud’ and Cyber Ninjas every day? How much is it going to cost?
“Arizonans want open and transparent government. It’s not that.
A spokesperson for House Republicans did not respond to The Washington Post’s request for comment.
Attorney General Kris Mayes (D) said she had “deep concerns” about the legislature’s new rules. “Transparency and accountability in the operation of government and the activities of our elected leaders are central to the tenets of American democracy,” she wrote in an email.