Arizona Legislature exempts itself from state public records law
By Bob Christie | Capitol Media Services
PHOENIX — The Arizona Legislature will exempt itself from state public records law and destroy all email correspondence sent or received by lawmakers or staff after 90 days under new rules adopted by majority Republicans over vigorous opposition from minority Democrats.
The Senate also completely exempted text messages on their personal phones, which lawmakers frequently use for legislative business, from release at any time. The House policy is not as expansive.
If in place after the 2020 presidential election, these rules would have prevented the public from learning about many of the efforts to persuade Arizona lawmakers to throw out President Joe Biden’s win.
One of the most well-known of those efforts was a series of emails that Virginia Thomas, wife of U.S. Supreme Court Justice Clarence Thomas and a supporter of former President Donald Trump, sent to a host of state Republican House and Senate members just days after President Joe Biden won the election. She urged members to throw out Biden’s delegates to the Electoral College and replace them with a GOP slate.
The House changed its rules on Tuesday, and the Senate on Wednesday. The changes create broad exemptions for the Legislature from state Public Records Law, which requires retention of records indefinitely and release to the public on request.
Senate Republicans were forced to release thousands of emails and text messages related to their partisan review of the 2020 presidential election, although they fought the release in court.
The state Supreme Court ruled last year that some of the emails and text messages could remain secret. The court cited the needs of lawmakers to be able to discuss and debate issues privately, and the principle of separation of powers.
Current Senate President Warren Petersen, R-Queen Creek, was deeply involved in that effort when he was chair of the judiciary committee.
The House package that was adopted despite unified opposition from minority Democrats also makes major changes to many other rules of the chamber, including limiting debate on controversial legislation to just 30 minutes and requiring the Republican speaker to approve future rules changes ‑ even if a majority of members vote to do so. And it allows Speaker Ben Toma, R-Peoria, or Senate President Peterson to sue for any perceived slight by new Democratic Gov. Katie Hobbs without holding a vote.
The debate limit in the House removes one of the few procedural moves minority Democrats have to slow down bills that are being pushed only by Republican members. The GOP has slim one-vote majorities in both chambers. No major changes to debate rules were made in the Senate, which has half as many members.
The provision requiring the speaker to vote in favor of any future rules change will block any bipartisan effort to bypass him and call for a vote on legislation he does not support.
“It’s important to note that had the Speaker’s vote been needed … Arizona would not have seen Medicaid expansion or the (2022) ballot referral of in-state tuition for DACA (dreamer) recipients — which the voters approved by the way,” minority Leader Andres Cano, D-Tucson, told fellow members Tuesday.
“And now it could potentially impede a bipartisan budget unless the Speaker is a yes vote,’’ he continued. “If a member wants veto power, run for governor.”
Toma said rules on limiting debate had been used at points in the past two years — though only on occasion — and he defended the changes to the policy on retaining public records.
“I don’t think there’s any intention on my part to hide anything,” he told Capitol Media Services Wednesday.
“The important part is regardless of what it may look like ... we do have legislative privilege that applies,” Toma said. “And every rule that we’ve made is procedural in nature. In other words, we have the right to do this — and we’re doing it.”
Rep. Travis Grantham, R-Gilbert, a member of the Republican leadership team, defended the new rules during the vote, saying the limits on debate were needed because Democrats were using lengthy floor debates as a “weapon.” He also said that Republican leaders here looked to rules adopted by the U.S. Congress as a template.
“These rules are rules that were accepted and written by Democrats and Republicans,” he said, even though Democrats in the Arizona House were not consulted. “So to present this in a way that makes it seem that Republicans are restricting speech or stopping one side from doing business, it’s just totally disingenuous and unfair. And let’s just be honest about it.”
He made no mention of the new records retention policy, which has the most impact on the public’s ability to learn what lawmakers are doing and who is urging them to act.
If it had been in place in 2020, Thomas’ emails would have been destroyed before reporters were able to seek them through public records requests.
The Washington Post first obtained Thomas’ emails in May 2021, more than six months after she sent them. And American Oversight, a watchdog group whose lawsuit seeking to obtain records of the Senate “audit’’ of the 2020 election, led to the state Supreme Court decision, would have come up empty.
Heather Sawyer, executive director of that Washington, D.C.-based group that focuses on obtaining public records to boost government accountability, said the change only benefits lawmakers who want to hide the truth from the public.
“This rule change abets government secrecy by virtually mandating the destruction of records that belong to the people of Arizona,” Sawyer said in a statement to Capitol Media Services. “An informed public is critical to a functioning democracy and this effort to hide the facts and evade public accountability should be reversed.”
The FBI subpoenaed former Senate President Karen Fann’s records and those of another former Republican senator, Kelly Townsend, last year as it looked into Trump’s efforts to overturn his defeat. But Sawyer said it would have come up empty if the new policy had been in place.
Democratic Sen. Mitzi Epstein, D-Tempe, on Wednesday decried the new secrecy.
“We should be operating transparently,” Epstein said. “And the emails where we discuss policy should be available to the public when they request it.”
Senate Majority Leader Sonny Borrelli, R-Lake Havasu City, said no one should be able to get the contents of his personal text messages without a warrant. But courts have ruled that text messages on private devices concerning government business are public records.
Cano said the idea of the Legislature exempting itself from the law requiring the retention of emails — the House rules say text messages now can be destroyed “after reference value has been served” — undermines transparency.
“Saying the law doesn’t apply to us is a terrible message to send to the public,” he said.