BC-US–Sunshine Week-Statehouse Secrecy-States,ADV13
How open record laws are applied in state legislatures
A state-by-state look at how Republican and Democratic lawmakers responded to open records requests filed by The Associated Press. The AP sought copies of the daily schedules and emails from their government accounts. More lawmakers denied the requests than granted them.
A state-by-state look at how Republican and Democratic lawmakers responded to open records requests filed by The Associated Press
Eds: Moving in advance for use Sunday, March 13, and thereafter. With BC-US–Sunshine Week-Statehouse Secrecy. One of several stories by The Associated Press, McClatchy and the Milwaukee Journal Sentinel marking Sunshine Week, an annual celebration of access to public information; FOR RELEASE SUNDAY, MARCH 13, 2016, AT 10:01 A.M. EST.
By The Associated Press
Pub Eds note:
One of several stories by The Associated Press, McClatchy and the Milwaukee Journal Sentinel marking Sunshine Week, an annual celebration of access to public information
Lawmakers in every state have adopted laws requiring most government meetings and records to be open to the public. But in some states, lawmakers have exempted themselves from complying.
The Associated Press sent open-records request to the top lawmakers in all 50 states and most governors, seeking copies of their daily schedules and emails from the government accounts for the week of Feb. 1-7. The AP received more denials than approvals from lawmakers. It did not generally request emails from private accounts because rules and practices on those vary widely from state to state.
Summaries showing how they responded in each state:
Alabama’s top lawmakers agreed to release emails from official legislative accounts, although documents shed little light on legislative business. Spokespeople for legislative leaders said the lawmakers largely do not use the accounts for state business. The hundreds of pages of released emails showed almost entirely incoming correspondence from constituents. Alabama Gov. Robert Bentley does not have a state email account that he uses for state business, according to his office. Legislative leaders also agreed to release their calendars for the week, which coincided with the first week of the Alabama legislative session. The calendars showed a variety of public and private events, including receptions hosted by interest groups and meetings with the governor, a college chancellor and lobbyists.
Under a policy set by the Legislative Council, records of a legislator while in that lawmaker’s possession are not public records based on the deliberative process privilege and a state constitutional provision dealing with legislative immunity. But all lawmakers can decide whether to release information from their records. Republican Senate President Kevin Meyer provided a copy of his calendar and allowed a reporter to look over an aide’s shoulder to see how his email inbox is sorted. The other three top legislative leaders ultimately denied the request, responding with either a legal opinion on what the law requires or a copy of the legislative records’ policy. Gov. Bill Walker’s office released a copy of his calendar. It was still working on a request for his emails.
Arizona’s public records law applies broadly to the governor and Legislature as well as any elected official. It requires records to be released in most instances, although there are exemptions for security, privacy interests and some deliberative matters. Senate President Andy Biggs doesn’t keep a calendar, but his staff released his emails for the week, apparently unredacted. House Speaker David Gowan released a calendar that redacted the subject of some meetings but included attendees, apparently citing the deliberative process exemption. He received or sent more than 1,500 emails, but staff had not yet reviewed them all because the Legislature is in session. Democratic House and Senate leaders also said they would comply, but with even smaller staffs had not yet reviewed and released all the documents. The governor’s office provided unredacted calendars and emails, although it appears Gov. Doug Ducey sent no emails and most he received were form letters.
Three of Arkansas’ top lawmakers declined to provide schedules or correspondence from their publicly listed email accounts, citing exemptions in the state’s open-records laws. Republican Senate President Pro Tem Jonathan Dismang, Democratic Senate Minority Leader Keith Ingram and Republican House Speaker Jeremy Gillam all turned down the AP requests. Rep. Michael John Gray, the Democratic minority leader in the state House, did not reply promptly to the initial request or a follow-up email. The Arkansas Freedom of Information Act exempts the correspondence of the governor and state legislators from public access, despite the act’s expressed intent to allow residents to track the performance of officials “in public activity and in making public policy.” Republican Gov. Asa Hutchinson’s office turned down the AP’s emailed request in a letter sent through U.S. mail.
The Assembly and Senate Rules committees declined requests for emails and calendars for the top legislative leaders, citing a number of exemptions including privacy and legislative privilege. California’s legislative branch is bound by a less transparent public records law than the executive. It exempts from public disclosure all “correspondence of and to individual members of the Legislature and their staff” as well as any communications between private citizens and the Legislature. The committees also cited a 1991 California Supreme Court decision allowing government agencies to maintain the secrecy of public officials’ appointment calendars. Gov. Jerry Brown’s office said it releases the governor’s calendar monthly and declined to provide earlier access to a week of appointments. Brown’s office said he did not use his official email account during the first week of February, the week requested by the AP.
Colorado’s legislative leaders agreed to release personal calendars and emails — for a price. Three of the four lawmakers said responding to the public records request would require them to spend time reviewing the documents, which triggers a $30 per hour search-and-retrieval fee under the Colorado Open Records Act, according to Legislative Legal Services Director Dan Cartin. Senate President Bill Cadman, House Speaker Dickey Lee Hullinghorst and Rep. Brian DelGrosso estimated the costs to be between $30 and $125 each to comply with the request. Sen. Lucia Guzman provided the documents without a fee. Gov. John Hickenlooper’s office provided his calendar and emails without charge, after requesting a four-day time extension to identify the appropriate emails.
Much of Connecticut’s open records law applies to the Legislature and the governor. All four top legislative leaders and the governor said they would provide emails and schedules to the AP, and three of the lawmakers had done so by early March. The amount of material provided to the AP varied by leader. Some schedules were more detailed than others. Many of the emails provided included mass letters or news releases about particular subjects, such as a national popular vote for president or abusive practices of debt collectors. In some cases, emails were sent from members of the public who were responding to mass emails the legislative leaders had sent in advance of the new legislative session to supporters. While the Legislature must abide by the records portion of Connecticut’s Freedom of Information act, state lawmakers have exempted themselves from requirements surrounding the noticing of public meetings and posting requirements for agendas.
Delaware legislative leaders refused to provide their emails. The Legislature has specifically exempted emails of lawmakers and their staffs from the state’s Freedom of Information law, as well as any communications between lawmakers, or between lawmakers and their constituents. A bill to remove those exemptions was introduced earlier this month but has yet to be heard in committee. An attorney for the lawmakers also said many activities on their daily schedules are exempt from disclosure, asserting that exemptions allowed by statute or common law extend to the concept of “legislative privilege” based on Delaware’s constitution and common law. The attorney nevertheless released portions of the lawmakers’ schedules while asserting that doing so was not a concession that the information is subject to the FOI law. The activities mostly involved appearances at community meetings and charitable events. The deputy legal counsel for Democratic Gov. Jack Markell said the governor’s office is working diligently to respond to the AP’s request, but that more time is needed because review of the records requires legal advice. Markell’s office has previously denied formal records requests for his emails.
Florida’s open-records law applies to lawmakers and the governor, and all responded by to the AP’s request by providing copies of their government emails and daily calendars. But some initially said there could be costs. The House Republican and Democratic leaders, for example, were swamped with hundreds of emails for the week of Feb. 1-7, as the chamber was considering bills allowing guns on college campuses and the open carrying of firearms. They said the records request would require extensive staff time and fees, so the AP narrowed the scope to review only certain emails. Some lawmakers have dealt with the open-records law by not using email for public business. Only the response from Democratic Senate Minority Leader Arthenia Joyner included substantial emails both to and from the legislator. Republican Gov. Rick Scott’s response consisted of a reference to a website where he publishes his schedules and emails.
Three of the state’s top lawmakers — the House speaker and minority leaders of both chambers — refused to release calendars or emails. In emails denying the requests, legislative counsel Wayne Allen said the General Assembly is not subject to the Georgia Open Records Law. Allen cited a 1975 state Supreme Court decision in a case over access to legislative committee meetings. The Supreme Court found that the state’s law regarding open meetings does not apply to the General Assembly because the Legislature is not an “agency” under the open meetings law. Allen said “agency” is defined the same way in state law regarding open records. The Supreme Court’s majority opinion in that case also states: “If the House, the Senate, or both want to let the sun shine more brilliantly and more pervasively upon their deliberations and actions, they can do so by adopting rules and procedures applicable to their operations that will accomplish this purpose.” Sen. David Shafer, the Senate’s president pro tem and a Republican from Duluth, did not respond to the open records request or a follow-up message emailed to his Senate account. By comparison, Gov. Nathan Deal’s office released seven pages of emails and Deal’s calendar for the week, including all of his meetings at the Capitol.
Hawaii’s top Democrat and Republican in the House did not supply emails and calendars, saying that the state Constitution provides immunity from the request; a statement some dispute. They also cited state laws that provide exemptions for personal files for members of the Legislature and “government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function.” Senate President Ronald Kouchi’s office also denied the request, citing an appeal before the state Office of Information Practices that would determine what the Legislature is obliged to provide. Of the lawmakers, only the state’s lone Republican Senator, Sam Slom, divulged the requested information, handing over printed emails and calendars. Gov. David Ige’s office asked for more time to respond to the request, and then provided some of the governor’s emails while withholding others. He provided a calendar that showed only his public events.
Idaho’s top four legislative leaders agreed to release their emails and personal calendars after requesting an extension for more time to review them for possible exemptions. Together, the speaker of the House, Senate president pro tem and minority leaders in both chambers had more than 3,700 emails. Lawmakers’ emails are public records under Idaho’s open records laws, a statute the Legislature adopted in 1990. However, fulfilling that request would not have been free because state law allows officials to charge after providing one free hour’s of work. Gov. C.L. “Butch” Otter’s typically provides emails and personal calendars with little to no redaction.
Neither the Senate nor the House, both controlled by Democrats, turned over any records. House Speaker Michael Madigan of Chicago, speaker for 31 of the last 33 years, doesn’t use email or keep an appointment calendar, spokesman Steve Brown said. The Senate said it is not required to disclose any of the requested records because of legislative immunity granted by the state constitution. Both the House and Senate also argued that the requested documents are not public records, as defined by the Illinois Freedom of Information Act, because they are held by individuals who do not constitute “public bodies.” They may also be withheld, officials argued, under exemptions in the law for documents that contain “preliminary” discussions and that prohibit disclosing records when doing so would be a “clearly unwarranted invasion of personal privacy.” Gov. Bruce Rauner, a Republican, disclosed a fairly detailed appointment calendar — more detailed than before The Associated Press and other media raised objections to redactions — but indicated there were no responsive emails.
Indiana’s Access to Public Records law states that “all persons are entitled to full and complete information regarding the affairs of government.” But lawmakers argue that their “work product” is exempt. The Indiana Supreme Court will hear arguments March 17 in a case brought by advocacy groups that sued House Republicans for refusing to release possible email exchanges with energy industry lobbyists. GOP leaders who control the Legislature say releasing the emails would reveal constituents’ sensitive and personal information. And they say their schedules contain details from their private lives that are not related to state business. Republican Gov. Mike Pence’s office says a request for one week of emails by The Associated Press was “too broad” and that his schedule is exempt from public records law. Meanwhile, minority Democrats are split on the issue. Senate Minority Leader Tim Lanane said GOP Senate leaders instructed him not to release the documents. House Minority Leader Scott Pelath said his office is reviewing his records to see what may be released. The state’s public access counselor, Luke Britt, disagrees with lawmakers’ decision not to release emails: “There is no exemption in public records law for historical practice or longstanding policy,” he said.
Staff for top legislative leaders cited the Iowa Constitution in their refusal to release work emails and daily calendars for the lawmakers. The chief clerk for the Republican-controlled House said the Constitution specifies each chamber “solely controls the dissemination” of such records. The secretary of the Democratic-majority Senate cited a constitutional section that states each chamber “determines its rules of proceedings,” and that overrides Iowa’s open records law. The same official said the requested emails and calendars have not customarily been deemed public documents and their release “would almost certainly have a detrimental chilling effect on citizens’ constitutional rights and willingness to petition their elected officials.” Gov. Terry Branstad, who doesn’t have a work email, releases a weekly calendar of public appearances. A records request for work emails and daily calendars to Branstad’s chief of staff, Michael Bousselot, yielded more than 400 emails and attachments. Staff for his office said some documentation was withheld according to exemptions in Iowa’s open records law.
The Kansas Open Records Act specifically exempts legislators’ records from potential disclosure, and both Republican Senate President Susan Wagle and GOP House Speaker Ray Merrick cited the exemption in declining to release calendars or emails from state accounts. However, the Legislature’s two top Democrats — Senate Minority Leader Anthony Hensley and House Minority Leader Tom Burroughs — released their calendars and emails. Hensley’s office responded to the AP’s request within days, releasing more than 1,000 pages of documents and indexing them in black binders. Burroughs’ office released about 600 pages of documents. Republican Gov. Sam Brownback acknowledged last year that he uses a private cellphone and email account for official communications and has been doing so since he was a U.S. senator in the 1990s because sometimes it’s not clear whether something represents official business. His office released his calendar and about a dozen pages of copies of emails from his official state account.
Kentucky’s governor and top legislative leaders refused to release their emails or detailed personal calendars. An attorney for the Legislative Research Commission said lawmakers’ emails have always been protected by law “to encourage effective and frank communication.” An attorney for Republican Gov. Matt Bevin said the governor sent and received four emails during the one-week period covered by The Associated Press’ open-records request. Three of those emails were recommendations while the fourth email was a status update on a complaint or investigation. The attorney cited state law that exempts preliminary recommendations “in which opinions are expressed or policies formulated.” Both the governor and the legislators cited a 1995 Kentucky Court of Appeals case that ruled calendars are “draft documents” and not subject to public disclosure.
The Senate’s top lawmakers released their personal calendars, although the Senate president’s calendar had few engagements listed on it. House leaders haven’t yet released their calendars. Lawyers for both the House’s and Senate’s top lawmakers have said they will release some emails, but said it takes time to sift through the documents and remove those that don’t involve public business. They also indicated they intend to remove emails that are granted exemptions, like for advice given by legislative staff. Staff members for the lawmakers say they must do the work around other obligations. With the Legislature in a special session to deal with the state’s worst budget problem in nearly 30 years, no date was given for turning over emails. By comparison, Gov. John Bel Edwards’ office released his calendar and emails within days of the request, although the email correspondence was limited. Edwards spokesman Richard Carbo said the governor rarely uses email.
Public records, such as emails and personal calendars, must be made available “within a reasonable period of time,” according to Maine law. Senate President Michael Thibodeau, a Republican, produced email and calendar records four days after receiving a request from The Associated Press. The staff for Gov. Paul LePage said it would take two months to provide the same type of records. In a letter to the APs, Jennifer Tarr, a state employee who oversees public record requests for the Republican governor, said the administration has a backlog of pending requests and is handling them in the order they are submitted. A “good-faith non-binding time estimate is that it will take us two months to provide the requested records,” she said.
Maryland’s Public Information Act gives the public the right to access government records without unnecessary cost and delay. However, not all government records are disclosable under the law. For example, state legislators are shielded from disclosing documents relating to legislative activities by an absolute constitutional privilege, according to counsel for the General Assembly. When the AP requested emails and a daily schedule of activities for top lawmakers for the first week of February, most of the records would not have been releasable under the law, according to the attorney. However, the legislators waived legislative privilege and released hundreds of pages of documents, anyway. The governor’s office also released his emails and calendar for the same week’s period.
Democratic House Speaker Robert DeLeo and Republican minority leader Brad Jones declined to release their emails or personal calendars, citing state law that exempts the Legislature from the state’s public records law. Senate President Stan Rosenberg also cited the legislative exemption, but Senate Counsel Grace Miller, in a letter to The Associated Press, said the Democratic leader agreed to make available his calendar and emails “in the spirit of openness and transparency associated with Sunshine Week.” Rosenberg’s office subsequently turned over to the AP hundreds of pages of email correspondence from the week of Feb. 1-7. Many of them were from constituents or advocacy groups and involved pending legislation on issues such as charter schools, solar energy and even public records reform. Republican Gov. Charlie Baker also turned over his schedule and several hundred pages of email correspondence from the week, with some material redacted for reasons including privacy or security. The governor and his predecessors have also claimed an exemption from the public records law but have selectively responded to requests over the years.
Requests for records were denied in Michigan by Gov. Rick Snyder and all but one of the four legislative leaders. A letter from Snyder’s deputy legal counsel said the governor’s office “is expressly exempt from FOIA’s coverage.” Snyder recently voluntarily released his emails and those of his staff related to Flint’s water crisis. The Senate Business Office, responding on behalf of Republican Majority Leader Arlan Meekhof and Democratic Minority Leader Jim Ananich, said emails and daily activity schedules are not financial records and therefore not subject to public inspection under Senate rules. In 1986, the state attorney general said lawmakers are not subject to FOIA, issuing an opinion that the Legislature’s intent in enacting the 1976 open-records law was to exclude legislators from the definition of “public body.” Financial records are subject to disclosure, though, under the Michigan Constitution and legislative rules. In a letter, the House Business Office said Republican Speaker Kevin Cotter’s emails and calendar would not be released because the House of Representatives is not subject to FOIA. A spokeswoman for Democratic Minority Leader Tim Greimel said he would release the records requested by the AP.
Top lawmakers in Minnesota refused to release their emails or schedules, and they don’t have to do so. The Legislature exempted itself from Minnesota’s open records law, deferring instead to internal House and Senate rules that don’t require lawmakers to turn over their own records. Legislators defend the long-standing exemption, arguing it protects sensitive communication with constituents and allows them to freely consider issues. But Democratic House Minority Leader Paul Thissen says he will push this year to subject the Legislature to the same rules as other public officials. Gov. Mark Dayton has routinely released scores of emails. But Minnesota governors have long protected their personal schedules.
The top Republicans in the Mississippi Legislature, Lt. Gov. Tate Reeves, and House Speaker Philip Gunn, refused to release their emails or schedules. The Democratic leaders in each chamber, Sen. John Horhn and Rep. David Baria, did not respond to requests for the records. In denying a request, Gunn wrote that the state’s 1983 Public Records Act does not apply to members of the Legislature. Gunn also wrote that disclosing the requested records would endanger the privacy of other legislators and of constituents “who should be able to expect a private communication with his or her legislator about policy.” Republican Gov. Phil Bryant did not immediately respond to a request for emails or schedules.
Three of Missouri’s top four lawmakers — the House speaker, Senate president pro tem and Senate minority leader — all denied requests to release their government emails and daily calendars. The Missouri Sunshine Law applies to any “public governmental body.” The Legislature has interpreted that to cover its two chambers and various committees but not each individual lawmaker. It points to a July 2003 ruling of a state appeals court panel, which said a St. Louis school board president as an individual was not a “public governmental body” and thus not individually subject to the Sunshine Law. House Minority Leader Jake Hummel, a Democrat from St. Louis, was the only legislative leader to release his records. He believes the Sunshine Law applies to individual lawmakers and has instructed House Democrats to comply. Gov. Jay Nixon also released his daily calendar and emails, although the emails consisted only of news clips and press releases. A Nixon spokesman said the governor doesn’t typically communicate by email.
The state’s top lawmakers generally cooperated with requests for emails and schedules, but in some cases were reluctant to do so. The Senate president, Debby Barrett, responded only when pressed. When she did respond, she simply stated that she conducted no official business via email during the week in question. A legislative subcommittee last month took up the issue of public requests for email and directed staff to clarify existing guidelines, including the use of personal email addresses in the conduct of public business. Some legislators, even when using government-issued accounts, balked at providing all correspondence that flowed through their government-issued accounts, citing privacy. Staff members for Gov. Steve Bullock said they would work on fulfilling the request, but about a month later had yet to produce the documents.
The state’s top lawmakers agreed to release detailed personal calendars but refused to provide their emails. The main reason they cited is to protect the sensitive and personal information of their constituents. Nebraska’s open records law exempts “correspondence, memoranda and records of telephone calls” related to a state lawmaker’s duties. They can only be released to the public with the lawmaker’s approval. Nebraska has the country’s only unicameral legislature. By comparison, Gov. Pete Ricketts’ office released about 600 pages of emails from the governor’s public account, which mostly consisted of correspondence from constituents and Twitter notifications (the governor and his staff say they no longer use personal email accounts for state business). The governor also released his public schedule but refused to disclose the governor’s personal calendar, which includes all of his meetings at the Capitol.
Lawyers representing the state’s top lawmakers declined to provide any emails or calendars. Their 28-page denial cites a bill rushed through on the chaotic last day of the 2015 legislative session that strengthened laws granting “legislative immunity” from records requests and covers all communications, even electronic ones. The lawyers also pointed to a statute that absolves the lawmakers from paying any court costs or attorney’s fees when they are sued over records requests, even when they lose the case. By comparison, Gov. Brian Sandoval’s office released a detailed calendar of his week that included phone calls with legislative leaders and U.S. Sen. Harry Reid, a “veteran of the month” ceremony and a private black tie dinner in Las Vegas. Lawyers for his office said they needed more time to meet a request for his emails.
Gov. Maggie Hassan’s legal counsel said it is a long-standing position of the state Department of Justice that New Hampshire’s Right to Know law does not apply to the governor’s office. However, Hassan’s schedule and some emails were provided in accordance with the state Constitution. The office withheld 51 documents it said were exempt because of attorney-client privilege, being in draft form, or because they dealt with personnel issues or the deliberative processes. The state’s top lawmakers did not yet respond to the AP’s request. Legislators’ emails, phone records and calendars have been considered exempt from public view, based on a 2011 opinion interpreting the state’s Right to Know Law from then-Attorney General Michael Delaney. Last year, the state Democratic Party was turned down when it requested communications records between the Republican state Senate president and Republican U.S. Sen. Kelly Ayotte, her staff and any paid consultants. Senate Legal Counsel Richard Lehmann wrote that the position taken by legislators on the matter “has been uniform and consistent in response to requests from both major political parties and the press.”
All four of New Jersey’s legislative leaders denied a request for records and schedules under the Open Public Records Act. The law exempts certain legislative records, such as correspondence with constituents, from being made public. But in practice, the Legislature exempts itself from disclosing records. Gov. Chris Christie denied a request for emails under an exemption for deliberative documents. His office released statements on his schedule that had been made public, although they included no detailed information about his agenda. Instead, they directed the reader to contact his presidential campaign, which he quit after a poor finish in New Hampshire.
The Legislative Council Service provided calendars with rough itineraries for lawmakers that included breakfasts and dinners sponsored by industry and interest groups, with a few redactions for personal appointments. A small share of the work-related appointments included names of individuals, and none described the content of conversations. Lawmakers also released hundreds of emails. They were mainly from constituents, and only three were outgoing emails. Three emails were withheld by one lawmaker under an exemption for correspondence with staff at the Legislative Council Service, which helps lawmakers draft legislation. Republican Gov. Susana Martinez provided her daily calendar but delayed responding to the request for emails beyond the 15-day deadline for immediate inspection of records, saying her office was busy reviewing legislation for approval or veto. She also invoked open records law provisions related to “excessively burdensome and broad requests.”
New York lawmakers aren’t subject to the state’s open-records law. Republican and Democratic leaders of the Senate and Assembly declined to disclose their schedules and emails, citing their rules that don’t require it. Gov. Andrew Cuomo has proposed extending the open-records law to the Legislature. The Cuomo administration has been criticized by journalists and issue advocates for slow and often limited disclosures under the law that does apply to executive agencies beyond a prompt initial response acknowledging receipt of requests.
State law defines public records as those “made or received pursuant to law or ordinance in connection with the transaction of public business.” But the General Assembly passed laws that let lawmakers choose to keep confidential documents created by legislative employees. And legislative leaders also believe emails from constituents aren’t “made or received pursuant to law or ordinance” and are thus privileged except in limited circumstances. It’s led to a mix of results from the requests to legislative leaders. The offices of House Speaker Tim Moore and Senate leader Phil Berger say calendars are created by legislative workers and are confidential. They also agreed to provide a limited number of emails, most of which were press releases or financial statements from other agencies. House Minority Leader Larry Hall said he had nothing that “would be responsive to your request under the public records laws.” Senate Minority Leader Dan Blue, however, provided close to 500 emails, dozens of which came from citizens urging him to oppose changes proposed by the state employee health insurance governing board.
State law exempts the Legislature from the open-records law. The Republican House and Senate majority leaders denied the AP’s records requests for emails and calendars, citing the law. But the Democratic minority leaders complied with the request. House Majority Leader Al Carlson, R-Fargo, said he does not conduct “political correspondence” on his state email; rather, he uses a personal email account and “encourages all caucus members to do the same.” He said some Republican House members eschew email altogether in favor of traditional mail. Gov. Jack Dalrymple, who is subject to the law, released his emails and calendar.
Ohio law requires the Legislature, governor and other state agencies and offices to release most public records, including official calendars and emails, that serve to document the functions, policies, activities or decision-making of the office. Certain exceptions exist for records or portions of records considered to raise privacy, proprietary or security concerns. Legislators also are allowed to withhold work-related documents that are exclusively for personal use, such as personal calendars, meeting notes and personal papers.
Most of Oklahoma’s top lawmakers refused to release their calendars or emails, citing an exemption in the Open Records Act for the Legislature. The Republican and Democratic leaders in the Senate sent a joint response to the AP’s request, citing the statute’s exemption. House Speaker Jeff Hickman sent a separate rejection from the House’s general counsel. Only House Democratic Leader Rep. Scott Inman agreed to provide both his detailed calendar and all of his emails. Oklahoma Gov. Mary Fallin’s office is not exempt from the Open Records Act, and the AP’s request was acknowledged by her general counsel’s office and placed in a queue behind other pending requests. Fallin’s office has typically taken a year or more to respond to records requests, prompting a legal challenge from the Oklahoma Democratic Party that is pending in district court. Oklahoma law says a public entity should provide “prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity of the organization of its records and to prevent excessive disruptions of its essential functions.”
Oregon’s governor and top lawmakers have agreed to comply with the requests for calendars and emails, which are public record under state law. Half of the eight top lawmakers who received records requests released their calendars, including the Senate president and House speaker. Some information was redacted, including phone numbers, addresses and details about specific events. Release of the calendars from the other four lawmakers and the governor are pending, as are the requests for emails. Legislative staff said the number of emails is 1,000 or more for the governor and some lawmakers. It’s common for responses to records requests to take months in Oregon, particularly with the governor and lawmakers while they are in session. Although Oregon’s public records laws are applied broadly, there are some exceptions for the Legislature. For example, lawmakers and legislative staff can ignore records requests filed between the 15 days leading up to the start of the legislative session and when it adjourns. When the session is over, however, the same records requests can be re-submitted and the Legislature would have to comply. Only one lawmaker initially chose to ignore the AP’s request, but later decided to comply.
Requests to all four legislative leaders for emails and calendars were denied. Legislative records are narrowly defined under the state’s Right-to-Know Law and include financial records, bills, co-sponsorship memos, chamber rules and other documents, but notably, not emails or daily schedules. The Senate letter denying access to those documents noted that making the request of the senators directly rather than through the clerk’s office could have delayed the process. The Senate also noted the AP had made very similar requests for correspondence in 2009, with the same negative result. Those two 2009 requests were the first appeals handled under a revamped public-records law that took full effect that year. The governor’s office has exercised its right to take up to 35 days to comply with the pending request, and its full response is due by March 17. Gov. Tom Wolf, a Democrat in his second year, has posted his public schedule online, a break from past practice that was apparently a response to an open-records court case.
Three of Rhode Island’s four top lawmakers and its governor denied requests to release their emails, citing a provision in the state’s open records law that exempts elected officials. The same law allows them to voluntarily disclose those emails. But the three lawmakers — two Democrats and one Republican — sent a joint response saying they were “conscious of the chilling effect that voluntary disclosure” would have on constituents if they knew emails were not held in confidence. Only one, Republican Senate Minority Leader Dennis Algiere, provided printouts of his correspondence with residents and local officials, most of it routine commentary on pending bills. Algiere said he did not include confidential emails, such as those disclosing medical conditions. House Speaker Nicholas Mattiello, Senate President Teresa Paiva Weed and Gov. Gina Raimondo, all Democrats, disclosed their calendars. The official schedules showed meetings with lobbyists and fellow officials and fundraising events. Republican House Minority Leader Brian Newberry said he does not keep an official calendar, noting that he is a “part-time legislator with a busy law practice.”
Legislative attorneys declined to release personal calendars or emails of South Carolina’s top legislators, including the Senate president pro tem, House speaker, and the chambers’ majority and minority leaders. The House attorney’s response noted that a schedule of the Legislature’s public meetings and their agendas are available online. The responses cited a section of the state’s public records law that excludes “memoranda, correspondence, and working papers in the possession of individual members of the General Assembly or their immediate staffs.” Efforts to strengthen the state’s Freedom of Information Act in the past several years have been repeatedly stymied over an amendment proposing to remove that exemption. Legislators have argued they lack the time and staff to comply with a potential barrage of requests and would not want to release constituents’ personal information. The governor, however, is not exempt. Gov. Nikki Haley’s office released 28 pages of her public schedule, as well as 142 pages of emails from an address her office says is used for inter-office communication. The vast majority of those emails contained summaries of that day’s news articles. Much of the rest contained weather forecasts and warnings. Her office also allowed review of several hundred emails that constituents sent to her public email address. The wide array included requests for meetings, help with agencies, support for legislation and recommendations of who to endorse in the GOP primary.
South Dakota law says public records include all records and documents, regardless of physical form, belonging to government entities — unless a different law, ordinance or rule bars particular information from public disclosure. Records exempted from disclosure include correspondence, memoranda, calendars or logs of appointments of public officials or employees. Gov. Dennis Daugaard’s office and the state Legislative Research Council cited the law exempting the disclosure of correspondence and calendars in denying the AP’s requests for emails and calendars.
The state’s top lawmakers agreed to release personal calendars and copies of incoming emails, although some of the writers’ contact information was redacted. While Tennessee lawmakers are exempt from the state’s open records laws, the Legislature’s general practice is to make a good faith effort to be responsive to requests. Lawmakers provided the records they considered to be responsive, rather than having the email server searched by an independent party. Senate Minority Leader Lee Harris disagreed with that practice, arguing it shouldn’t be up to the subject of the request to decide which records are relevant. The Memphis Democrat provided the log-on information to his legislative email system for a reporter to inspect his records in their entirety. Republican Gov. Bill Haslam’s office released emails, but has long refused to release his personal calendar on the basis of “deliberative process privilege” under common law.
Republican Lt. Gov. Dan Patrick, who heads the Senate, released 48 pages of emails consisting mostly of invitations to policy conferences and a daily newsletter produced by a legal news service. Patrick’s office also stated that it was withholding other information, including that related to state audits, and seeking an opinion from the Texas attorney general that doing so met appropriate exceptions to open-records rules. Patrick’s weeklong public schedule contained just three listings: attending a play; holding a news conference; and giving a speech. All were in the lieutenant governor’s native Houston. Sen. John Whitmire, the chamber’s longest-serving Democrat, didn’t reply to the AP’s request, despite open-records requirements that a response or explanation of why one isn’t yet ready be provided within 10 working days. Rep. Garnet Coleman, a leading Democratic voice in the state House, released 700-plus pages of emails and a detailed schedule that included his meetings and other official and non-official business. Republican Gov. Greg Abbott’s schedule consisted of seven blank pages, each labeled “no scheduled events,” although he had appeared on national TV to discuss naming Feb. 2 “Chris Kyle Day” in honor of the famous sniper. His office did not release any emails, instead saying the requested items were exempt from disclosure.
Utah’s House and Senate provided emails for the top Republican and Democrat in each chamber. But both chambers denied a request for calendars, citing part of Utah’s open records law that says a daily calendar is not considered a public record. The Senate released about 500 each from the accounts of Senate President Niederhause and Minority Leader Gene Davis. Well more than 100 emails each were released from the accounts of House Speaker Greg Hughes and Minority Leader Brian King. The Utah governor’s office denied a request for the governor’s calendar, citing the same part of Utah law as the House and Senate did. The governor’s office instead provided a copy of the governor’s weekly schedule, which contains a selection of public appearances and meetings. The governor’s office also denied the request for a week’s worth of Gov. Gary Herbert’s emails. Herbert’s general counsel said Utah’s public records law requires that a person requesting a record shall provide a “description of the record requested that identifies the record with reasonable specificity.” Herbert’s office said the AP request was for a specific time period but not a specific record. The office has in the past released nearly a year’s worth of emails on a particular topic.
The state’s top lawmakers and governor agreed to release detailed personal schedules for their time at the Statehouse or on state business. But Vermont’s is a part-time legislature with many members juggling outside jobs around their legislative work, and they were not willing to release detailed information on how that time was spent. Three of the legislative leaders are lawyers, and simply said they were meeting with clients or, in the case of Senate President Pro Tem John Campbell, working on cases as a deputy state’s attorney in Windsor County. The governor and lawmakers also released emails, with one exception. Senate Minority Leader Joe Bennington noted that he has no staff and that checking through his email to redact constituents’ personal informant would take hours of his own personal time, or time away from his law practice. House Speaker Shap Smith’s aide, Dylan Giambatista, noted that the release was provisional. “After consulting with the Legislature’s legal staff, “we have decided to provide you these records even though we were advised that we could assert arguments to withhold them. We reserve the right to assert such arguments in the event of a future Public Records Act request,” Giambatista wrote.
Virginia’s public records law grants elected officials broad discretion in what they can withhold, including any correspondence or records related to “personal or deliberative use.” Gov. Terry McAuliffe and the top Democrats and Republicans in both the House and the Senate all declined to provide emails The Associated Press requested. The governor and Democratic legislative leaders provided their calendars. Republican Senate Majority Leader Tommy Norment also provided calendars, but it showed only floor sessions and committee and caucus meetings — not any private meetings or events. Republican House Speaker William J. Howell said the request for a week’s worth of his calendar was too vague to qualify as a legitimate public records request.
Leadership in Washington’s House and Senate all denied requests to release their emails and daily calendars. Legislators have largely exempted themselves from the state public records law, which says “reports or correspondence made or received” by individual members of the Legislature are not public records. This exemption was cited by the offices of each chamber when denying the request. The state’s high court ruled in 2013 that the governor is allowed to shield some documents from the public because of an “executive privilege.” Gov. Jay Inslee has said he will not exercise the privilege. Upon request, his office released his detailed daily schedules and 39 generally uneventful emails. The emails often contained bits of information passed on by staff and news releases for Inslee to review.
State law says there is a “presumption of public accessibility to all public records,” although there are plenty of exemptions. The House speaker and minority leader released their emails in response to an AP request, but their Senate counterparts did not. All the top lawmakers declined to release detailed personal calendars. The House said that’s because they “are in draft form, contain appointments that may or may not occur, are revised daily, are never corrected, and are not an accurate log” of actual appointments. The Senate said the records requests were “overly broad and lack a reasonably specificity for the information sought.” The state Constitution says lawmakers are privileged for “words spoken in debate, or any report, motion or proposition made.” Gov. Earl Ray Tomblin’s office said he does not personally use his official email account. It said the account received more than 600 emails over the timeframe. Tomblin did not release his detailed calendar, echoing the reasoning of the House.
Wisconsin’s open records law allows requestors to obtain copies of records maintained by government authorities. The reason for the request is irrelevant and records are presumed to be open to inspection and copy. However, government officials don’t have to provide information if a record doesn’t exist and don’t have to create records to fulfil requests. All of Wisconsin’s top lawmakers released copies of their emails in response to the AP’s request. Most also released their daily calendars. But Republican Senate Majority Leader Scott Fitzgerald said his office deletes the calendar daily and that the Legislature isn’t subject to retention clauses in open-records laws.
State law exempts the Wyoming Legislature from the open-records law. Under Wyoming law, lawmakers do not have to disclose any communication with constituents or correspondence with legislative staff. The request for emails and calendars to both the Republican and Democratic leaders in the state Senate and House resulted in the same basic reply, noting the exemption. Republican Gov. Matt Mead, who is not exempt from any provisions, released his calendar, minus certain sensitive security details, and emails. However, the state Supreme Court has ruled recently that public officials can refuse public inspection of documents they relied on in reaching final policy decisions. The ruling came in a case against the governor’s office.
Information compiled by AP reporters in all 50 states.