Opinion: Lawmakers seeks to claw back secrecy on records

  • Tuesday, January 28, 2020 2:04pm
  • Opinion

By The Herald Editorial Board

The state Supreme Court ruleth; and the Legislature attempts to pecketh away.

Less than a month after the state Supreme Court affirmed the “plain meaning” of the state’s Public Records Act — ruling that the act that requires timely release of public records does, in fact, apply to state lawmakers just as it does local governments and other state agencies — legislators have proposed bills that would chip away at those guarantees of transparency regarding the dealings of the Legislature and state agencies.

Two pieces of legislation are of concern here:

House Bill 2466, an apparent attempt to bring lawmakers’ practice into accordance with the court’s ruling, instead contains provisions that would work against what a 7-2 majority of the court mandated.

The bill’s language does outline assignment of public records officers for both chambers, placing those responsibilities with the chief clerk in the House and the secretary of the Senate in that body. There also are provisions regarding policies and training. No obvious problems there.

But other provisions again seek exemptions for lawmakers that aren’t allowed for others. One provision would allow lawmakers to throw out notes sent to them in chambers regarding those who want to speak to them.

Another would exempt entire records if disclosure would release enough information to identify a person’s identity. Yet another would allow lawmakers to discard voicemails “as necessary to provide storage space,” unless the voicemail already has been requested in a public records request.

Let’s take those point-by-point:

Something as simple as a written note requesting to speak with a lawmaker may contain enough information to raise a concern and help direct the request of additional information and records.

Exempting an entire record for fear or identifying a whistle-blower or someone filing a complaint is simply overkill; the records act already allows for redactions of information that might tend to identify a person wishing anonymity. Such redactions are routinely and successfully used by local governments and other agencies to protect privacy.

And deleting voicemails to “save space,” is a quaint excuse in an era when such data storage is relatively inexpensive. Further, the legislation allows no time frame for how long a voicemail would need to be kept to allow a fair and legal opportunity for someone to request it. One can imagine a lawmaker — or more likely a staffer — simply deleting voicemails at the end of each day.

The other piece of legislation, House Bill 1888, applies not to lawmakers but to state employees and volunteers, and on its face might appear a reasonable protection of privacy. The bill would add dates of births and information regarding the payroll deductions for state employees to a list of information that already is exempt from release under the Public Records Act, including Social Security numbers, addresses, phone numbers and similar information that, in the wrong hands, can cause problems for private individuals.

The bill is in reaction to a lawsuit filed after the conservative Freedom Foundation sought information on state employees’ dates of birth and work email addresses. The foundation requested that information as part of its campaign to notify state employees of their right to opt out of paying dues to their labor unions.

The state agreed to release the information but public employee unions sued to block the release. The Freedom Foundation’s request is a legitimate use of the Public Records Act. Public employees, after all, are paid for their services by the public.

The state Supreme Court last October ruled against the unions, holding that the release of birth dates was not exempt from disclosure under the records act and that doing so was not a violation of the state constitution’s privacy guarantees.

The privacy concerns of state employees and volunteers are understandable, but birth dates — when compared to the other personal information already protected from release — are relatively inconsequential, especially in light of the lax attitude that many take in publicly sharing the same information on Instagram, Facebook and other social media.

And there’s a legitimate need for the news media to have access to birth dates. In particular when dealing with common names, that information is necessary to correctly identify subjects of investigations by newspapers and other media and avoiding confusion with individuals who share the same or similar names.

One provision in the bill deserves adoption. It would require state agencies to provide notice regarding the records request to the employee, the employee’s union and the requestor. Currently, a state agency has the option of notifying the employee but is not required to do so. It’s only fair that a law regarding transparency of information afford that same transparency toward state employees.

With the Supreme Court’s December ruling regarding the Public Records Act, the Legislature — not surprisingly — has seen a sharp increase in the number of requests for public records, the Associated Press reported Tuesday. In one month, the Senate has received 35 requests, compared to the 20 it received in all of 2019. The House received 43 in December and 40 thus far in January.

The Legislature needs to prepare to fulfill these and future requests in a timely and responsive manner.

Looking for opportunities to claw back some of the secrecy lawmakers lost in the court’s decision puts them further behind in meeting that responsibility.

Clarification: The editorial above has been corrected to reflect the Freedom Foundation’s role in the lawsuit regarding the release of state employees’ dates of birth and employee email addresses. After requesting the information, and the state agreeing to release it, public employee unions filed suit to prevent the release. The Supreme Court ruled against the unions and for disclosure of the information to the Freedom Foundation.