It’s Saturday, March 16, and we’d like to welcome you to the weekly State and Local Roundup. There is plenty to keep tabs on with Flint, Michigan, getting its hand slapped for missing a deadline to replace lead pipes, Florida settling a “Don’t Say Gay” school lawsuit, toll evaders costing localities millions and the best St. Patrick’s Day cities.
But first we take a look at state lawmakers’ efforts to overhaul their open records laws, as civic groups and journalists mark Sunshine Week to highlight the importance of public records and open government.
The fights in state capitols frequently pit reporters and watchdog groups against government officials. The good-government groups worry about the vanishing paper trail as elected officials and public administrators rely more heavily on text messages, video calls and hard-to-monitor apps to discuss important policy questions. State and local leaders worry about for-profit companies that mine public records for their own business purposes, inundating government workers with cumbersome requests. And politicians worry how increased scrutiny could affect their careers.
That’s the backdrop in places like Colorado and New Jersey, where lawmakers considered proposals this week to limit the scope of open-government laws.
Colorado Gov. Jared Polis, a Democrat, signed a bill into law Tuesday that exempts the legislature from the state’s open meetings law. The changes, which went into effect immediately, allow members of the General Assembly to discuss public business in serial meetings where no voting majority is present. It also declares that digital messages between lawmakers don’t constitute a “meeting” under the state’s open meetings law, a change from previous policy.
Lawmakers passed the legislation in response to two lawsuits they faced for secretive practices.
In January, a Denver judge ordered Democratic lawmakers to stop using a private ranking system to set budget priorities, because the third-party “quadratic voting” system ran afoul of the state’s open meetings law. “The explicit purpose of (Colorado’s Open Meetings Law) is to encourage public participation in the legislative process through an increased awareness of public matters,” Judge David Goldberg wrote.
Two conservative groups brought the lawsuit. “This illegal system let legislators off the hook from having to take public positions on legislation which keeps their constituents from knowing where their elected officials stand,” Michael Fields, president of Advance Colorado, one of the groups behind the lawsuit, said in response to the ruling.
This past summer, two Democratic lawmakers sued both Democratic and Republican caucus leaders in the House for skirting the state open meetings law. The pair said legislators routinely had substantive discussion about legislation without giving notice to the public as required by the law. They said legislators frequently used “ephemeral” messaging apps like Signal to send self-deleting messages to colleagues. In response, both caucuses agreed to stop using the apps and to start posting minutes and agendas of caucus meetings. The lawmakers who sued House leadership objected to the law passed this week.
House Speaker Julie McCluskie said the changes were needed to clarify what was and what was not allowed under the open meetings law. “We are grappling with hundreds of policy decisions. We are having to engage with one another multiple times a day, sometimes an hour,” McCluskie said Monday.
Steve Zansberg, the president of the Colorado Freedom of Information Coalition, criticized the changes. “It is profoundly disappointing that the leadership of both houses, and the governor, have chosen to effectively exempt one branch of government from our state’s public transparency law,” he said.
In signing the bill, the governor cited separation of powers concerns for letting lawmakers set their own meeting policies. “As a coequal branch of government, the Executive should rarely intrude on the inner workings of the Legislature, and the Executive Branch warrants the same deference from the Legislature on its internal operations,” Polis wrote.
In New Jersey, though, legislative leaders have slowed down the process of passing an overhaul to the state’s open records law because of widespread criticism from civil rights groups, unions, journalists and even the state’s first lady.
The sponsors of the effort, including Assembly Speaker Craig Coughlin and the Senate’s budget committee chair, described the revisions as a way of modernizing the state’s open records law. They said private data brokers are requesting information on dog licenses or real estate transactions, which can occupy town officials for hours at a time. Those commercial requests account for half of all records requests, county officials said.
The 2002 open records law “was enacted at a time when dial-up internet was cutting edge, Google was in its infancy and identity theft was your sibling borrowing your driver’s license to get into the college bar,” said Lori Buckelew of the New Jersey League of Municipalities, during an hours-long hearing Monday. “Fast forward 20 years, and not a week goes by that you do not hear of a data breach and calls for protection of personal identifying information. Under these bills, those protections are given.”
But the proposed changes sparked a quick backlash. Critics said a provision requiring government officials to redact information that could result in “harassment” of residents was too vague and unnecessary. They objected to part of the legislation that would require agencies to convert old records into an electronic format. And a proposal to eliminate the requirement that losing agencies have to pay attorney fees would make it difficult for ordinary citizens to get access to public data, they claimed.
“It’s great that you’ve met with the League and others, but this process here did not include people who actually file [records] requests,” said Charlie Kratovil, a Food and Water Watch organizer and journalist, according to the New Jersey Monitor. “They were not at the table, and this is being rushed through. So I think that the only appropriate course of action is to put the brakes on, to vote no, and to gather input before you take any action.”
The Assembly speaker announced on Thursday that lawmakers would pause before passing any changes. “We will take the time needed to meet with various stakeholders to modernize [the law] in a way that protects the public from having their personal information, drivers’ license numbers and other sensitive information available for anyone to see,” Coughlin wrote on social media.
Meanwhile, reporters in Nebraska decried a Friday ruling from the state supreme court that would allow state agencies to charge thousands of dollars in special fees to review public records. The high court upheld a $44,103 charge to The Flatwater Free Press to get documents related to nitrate contamination in groundwater.
“It will now presumably be even easier for any state agency or elected official or bureaucrat to charge any newsroom, and any regular citizen, the price of a Cadillac for public records—a price that in reality will likely cause the newsroom or Nebraskans to go away,” wrote the Free Press’ editor, Matthew Hansen. “To be clear: This was already happening regularly. It doesn’t take a law degree to guess that it will now happen more.”
On the other hand, lawmakers in Michigan are moving forward with an effort to subject the state’s legislature and governor’s office to the state’s freedom of information law, as a Senate committee advanced the measure on Wednesday. Michigan is one of only two states (along with Massachusetts) that has blanket exemptions for lawmakers and the governor. But bipartisan efforts from a pair of state senators to get rid of those exemptions have stalled for at least nine years.
“The sad reality,” said Sen. Jeremy Moss, the Democratic sponsor of the measure, “is that every scandal that we’ve endured here has also built the case for this legislation to move. So here we are, nine years into this project on Sunshine Week, seeing that light at the end of the tunnel.”
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