The Arizona Legislature exempts itself from the state public records law

By Bob Christie | Capitol Media Services

PHOENIX – The Arizona Legislature will waive the state public records law and destroy all email correspondence sent or received by legislators or employees after 90 days under new rules passed by majority Republicans against vigorous opposition from minority Democrats became.

The Senate has also completely exempted text messages on their personal phones, which lawmakers often use for legislative business, from being released at any time. The house policy is not so expansionary.

Had these rules been in effect after the 2020 presidential election, they would have prevented the public from learning about many of the efforts to persuade Arizona lawmakers to throw out President Joe Biden’s victory.

One of the most famous of these efforts was a series of emails sent by Virginia Thomas, wife of US Judge Clarence Thomas and a supporter of former President Donald Trump, to scores of members of the Republican House of Representatives and the state Senate just days later President Joe Biden won the election. She urged members to throw Biden’s delegates into the Electoral College and replace them with a GOP panel.

The House of Representatives changed its rules on Tuesday and the Senate on Wednesday. The changes create sweeping exemptions for lawmakers from the state Public Records Act, which requires records to be retained indefinitely and made available to the public upon request.

Senate Republicans have been forced to release thousands of emails and text messages related to their partisan review of the 2020 presidential election, despite challenging the release in court.

The state Supreme Court ruled last year that some of the emails and text messages could remain classified. The court referred to the need of the legislature to be able to discuss and debate matters privately and to the principle of the separation of powers.

Current Senate President Warren Peterson, R-Queen Creek, has been heavily involved in this effort as chairman of the Judiciary Committee.

The House package, passed despite unanimous opposition from minority Democrats, also makes significant changes to many of the chamber’s other rules, including limiting debate on controversial legislation to just 30 minutes and requiring the Republican speaker to limit future ones Approve rule changes – even if a majority of members vote in favour. And it allows Speaker Ben Toma, R-Peoria or Senate President Peterson to sue for any perceived insult by incoming Democratic Gov. Katie Hobbs without holding a vote.

Limiting debate in the House of Representatives eliminates one of the few procedural steps minority Democrats have to slow down bills pushed only by Republican members. The GOP has narrow one-vote majorities in both chambers. In the Senate, which has half as many members, no major changes were made to the debate rules.

The provision requiring the Speaker to vote for any future rule change blocks any bipartisan effort to circumvent it and calls for a vote on legislation it does not support.

“It’s important to note that if the speaker’s voice had been required … Arizona would not have seen the expansion of Medicaid or the (2022) electoral referral of state tuition fees for DACA recipients (Dreamers) — which voters incidentally approved,” Minority leader Andres Cano, D-Tucson, told his colleagues Tuesday.

“And now it could potentially hamper a bipartisan budget if the speaker doesn’t vote yes,” he continued. “If a member wants veto power, run for governor.”

Toma said that rules to limit debate had been applied – albeit occasionally – over the past two years, and he defended the changes to the public records retention policy.

“I don’t think I have any intention of hiding anything,” he told Capitol Media Services on Wednesday.

“The important part is, no matter what it looks like … we have applicable legislative privilege,” Toma said. “And every rule that we have set up is procedural in nature. In other words, we have the right to do it – and we do it.”

Rep. Travis Grantham, R-Gilbert, a member of the Republican leadership team, defended the new rules during the vote and said limiting debate was necessary because Democrats “weaponized” long debates on the floor. He also said that Republican leaders here took the rules passed by the US Congress as a template.

“These rules are rules accepted and written by Democrats and Republicans,” he said, although Democrats were not consulted in the Arizona House. “To portray this in a way that makes it appear that Republicans are restricting speech or preventing either side from doing business is just utterly disingenuous and unfair. And let’s just be honest.”

He didn’t mention the new record-keeping policy, which has the biggest impact on the public’s ability to know what lawmakers are doing and who is pushing them to act.

If it had been in effect in 2020, Thomas’s emails would have been destroyed before reporters were able to locate them through public records requests.

The Washington Post first received the emails from Thomas in May 2021, more than six months after sending them. And American Oversight, a watchdog group whose lawsuit aimed at obtaining records of the Senate’s “scrutiny” of the 2020 election that led to the state Supreme Court’s decision would have gotten nothing.

Heather Sawyer, executive director of this Washington, DC-based group, which focuses on preserving public records to increase government accountability, said the change only benefits lawmakers who want to hide the truth from the public.

“This rule change furthers government secrecy by effectively mandating the destruction of records belonging 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 attempt to hide the facts and evade public accountability should be reversed.”

The FBI subpoenaed the records of former Senate Speaker Karen Fann and those of another former Republican senator, Kelly Townsend, last year as it probed Trump’s efforts to reverse his defeat. But Sawyer said it would have come up empty had the new policy been in place.

Democratic Senator Mitzi Epstein, D-Tempe, on Wednesday condemned the new secrecy.

“We should work transparently,” Epstein said. “And the emails where we discuss policies should be available to the public if they request it.”

Senate Majority Leader Sonny Borrelli, R-Lake Havasu City, said no one should be able to get the contents of their personal text messages without a warrant. However, courts have ruled that text messages on private devices concerning government matters are public records.

Cano said the idea of ​​lawmakers exempting themselves from the law mandating email retention — the House Rules say text messages can now be destroyed “after the reference value has been served” — undermines transparency.

“To say the law doesn’t apply to us is a terrible message to the public,” he said.

Legislative branch,

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Warren Peterson,

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katie hobbs,

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