Worries over secrecy grow as state officials shield records from the public

Just weeks after lawmakers in Little Rock passed legislation shielding certain state records from public disclosure, opponents launched an effort to amend the Arkansas Constitution to protect access to government documents.

“The coalition that’s coming together on this is about as broadly bipartisan as you could get — from the extreme, extreme right to the hard, hard left and all the way in between,” said Nate Bell, a Republican-turned-independent and member of Arkansas Citizens for Transparency, which is pushing the constitutional amendment. “Folks who’ve been bitter political enemies for decades have joined together on this.”

Arkansas is one of several states this year that made more information secret by altering public records laws, often known as Freedom of Information Acts, or FOIAs. State officials say they are being overwhelmed with records requests, sometimes meant to harass lawmakers.

But the changes have alarmed press freedom and open government activists. Such exemptions to open records provisions can hamper journalists’ efforts to reveal the cost and behind-the-scenes details of governing decisions and make it harder for constituents to hold state officials to account.

Travel records can reveal who has influence with top leaders. Emails and text messages among government officials can reveal candid motivations for policy changes, political hypocrisy and even corruption.

Reviewing early drafts of proposed legislation allows reporters to track how politicians and lobbyists shape the law. And accessing police records, including body camera footage, provides tangible evidence of incidents such as police shootings — which can contradict official characterization of events.

Florida this year enacted a new law exempting the past and future travel records of the governor and other leaders from public disclosure. Arizona increased the price of providing certain police records and made it easier to close legislative records. And North Carolina legislators made rule changes that critics say will allow them to disclose or hide records at their own whims.

Arkansas Republican Gov. Sarah Huckabee Sanders signed her state’s new law in September; it exempts from public disclosure records and communications concerning the security of the governor and other elected leaders.

She sought the change after an Arkansas blogger sued the state for being denied records he sought on the security of the governor, her use of a state plane and a trade mission to Europe earlier this year. Critics said it went too far by cutting off access to documents such as receipts and reimbursements that would not risk the governor’s personal safety.

Initially, Sanders also sought to shield communications between the governor’s office and cabinet secretaries as well as documents “revealing the deliberative process” of state agencies. Sanders characterized this year’s legislation as “a great starting place” and “just the beginning.”

Those comments motivated people including Bell, a former Arkansas lawmaker who is a lead organizer of the Arkansas group that is aiming to put an amendment on the 2024 ballot. The measure, which is still being drafted, would enshrine the Arkansas Freedom of Information Act into the constitution and require a public vote for future changes.

“Government of, by and for the people is utterly dependent upon the people knowing what’s happening,” Bell said, “not just knowing what’s been done, but knowing how it’s being done, with whom it’s being done, and the process whereby it’s being done.”

But Arkansas Republican state Sen. Bart Hester said his legislation to protect security records was aimed at ensuring officials’ safety, arguing that bad actors can rely on past behaviors to anticipate future behaviors.

“So, it’s not reasonable or rational — in fact, I’d say it’s crazy for someone to ask for her security detail plans,” he said.

With state agencies overwhelmed with records requests, Hester said he’s interested in new legislation limiting the numbers of requests agencies must handle at any given time — rather than requiring them to respond within a certain number of days. He said a cap would allow school districts and state departments to focus on their core responsibilities, while still requiring them to eventually respond to requests.

The governor’s office did not say what kind of future changes Sanders would pursue with the state’s records law. In a statement, spokesperson Alexa Henning said Sanders was “proud that the legislature passed a law with bipartisan support to ensure the sources and methods used by law enforcement to protect constitutional officers and her family are protected.” Two Democrats, one in the House and one in the Senate, voted for the final bill.

Aside from changes in state laws, open government advocates on both sides of the aisle say it’s becoming more difficult to access government documents. Agencies can sometimes charge exorbitant fees for records production or resist outright, pushing disputes to the courts.

“Whether you are a Liberty Mom, or an election denier, or an everyday citizen who’s upset about how much your county board is spending on gravel or a reporter or a lawyer or a Black Lives Matter activist — whatever your motive, that should not matter under the law,” said Nebraska Democratic state Sen. Danielle Conrad. “Citizens have a right to know what their government is doing in their name and with their money.”

She introduced legislation this year aiming to further open access to public records. Her legislation did not advance but will be considered again next year. It would reduce fees for records, offer a waiver of fees for certain requests and make police body camera footage public following grand jury proceedings.

Conrad said the problems span from the governor’s office to local school boards. She’s worried that agencies that resist records requests are only fostering skepticism in government and democracy itself.

“I’ve heard from just countless citizens about their frustration with these processes,” she said.

Legislatures protect themselves

Arizona Republican state Sen. John Kavanagh acknowledged the vital role of Arizona’s open records laws. But he said they’re subject to “horrible abuse” because people rain requests on local governments and state agencies — sometimes to harass officials, other times just undertaking “fishing expeditions.”

“That’s the price you pay for open government,” he said. “The problem is: Where do you draw the line?”

At the same time, the proliferation of police body cameras has increased requests for recordings of high-profile shootings and incidents, Kavanagh said.

He introduced legislation that passed earlier this year allowing agencies to charge up to $46 per hour for the review, redaction and distribution of police videos. Kavanagh said reviewing those videos has become “unbelievably labor intensive.” Incidents that involve multiple officers require hours of review time as officials redact certain elements like faces of witnesses.

In another new law, the Arizona legislature allowed state officials to shield information such as home addresses from public disclosure, which Kavanagh said stemmed from growing safety concerns.

Early in the session, Republicans voted to change rules in both legislative chambers allowing legislators to delete their emails every 90 days and text messages at any time if members believe the “reference value has been served,” the Arizona Capitol Times reported.

North Carolina lawmakers ended their session with a similar move.

Tucked more than 500 pages deep in a 625-page budget bill was a new provision allowing lawmakers to exempt legislative records from public release. Legislators decide which documents are released — and which are withheld, destroyed or sold, according to the legislation. 

A last-minute addition, the measure has sparked bipartisan backlash in North Carolina.

“I don’t really know anybody outside the legislature who thinks this is a good idea,” said Andy Jackson, director of the Civitas Center for Public Integrity at the conservative John Locke Foundation.

House Speaker Tim Moore, a Republican, did not respond to request for comment. But last month, he defended the move, telling reporters that members of the General Assembly were overwhelmed with requests designed “to add to cost and harassment.”

“It’s a massive change,” said Brooks Fuller, executive director of the North Carolina Open Government Coalition. “It undermines the public access to any document that touches the hands of an individual legislator.”

Fuller, who is also an assistant professor of journalism at Elon University, said the move has sparked widespread confusion among lawmakers. Some have publicly committed to following previous practice of releasing most records, but the new rules have not been widely tested.

Protecting governors’ records

Like Arkansas, Florida this year closed access to some gubernatorial records.

The Sunshine State, which has long touted one of the nation’s most liberal public records laws, created one of the most significant records exemptions in decades by blocking access to the publicly funded travel records of Republican Gov. Ron DeSantis, who is running for president.

“That would be bad enough — travel records — but they made it retroactive,” said Barbara Petersen, executive director of the Florida Center for Government Accountability. “So we can’t get any records now, even for travel that took place three years ago or travel that [former Republican Gov.] Charlie Crist did as governor.”

Republicans said the change in Florida law was a matter of protecting public officials. But Petersen, whose organization supports local reporting and access to public records, said it is far too broad.

Aside from travel plans or costs, Petersen said, the law prevents disclosure of who the governor travels with, and who visits the governor’s office and the governor’s mansion. In September, The Washington Post reported on undisclosed trips DeSantis took on private jets, revealing “his proclivity for luxury travel and leisure time with wealthy donors.”

“There’s no accountability there,” Petersen said. “We don’t know who’s paying for the plane. We don’t know what the plane costs.”

Florida Republican state Sen. Jonathan Martin, who authored the legislation, did not respond to a request for comment. A DeSantis spokesperson did not answer questions but pointed to the governor’s comments at a May news conference, where he said the issue was one of security.

“You’re in a situation, unfortunately, where these movements are watched,” he said.

Even with a strong law on paper, access to public records has greatly diminished under DeSantis in practice, Petersen said. Citizens and reporters wait months, even years for responses — or have to undertake costly lawsuits to secure public information.

“The ability to access public records in Florida has significantly declined,” she said. “There are reporters who have waited nine, 10, 14 months for a public record. I can only think that’s by design.”