The Associated Press
State capitols are often referred to as “the people’s house,” but legislatures frequently put up no-trespassing signs by exempting themselves from public-records laws.
That tendency was apparent when The Associated Press sought emails and daily schedules of legislative leaders in all 50 states.
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.
Nationwide, the request from the AP was met with more denials than approvals.
Legislative immunity’
Some lawmakers claimed “legislative immunity” from the public-records laws that apply to most state and local officials.
Others said secrecy was essential to the deliberative process of making laws.
Some feared that releasing the records could invade the privacy of citizens, creating a “chilling effect” on the right of people to petition their government.
“The public has a right to know what their elected officials are doing because it’s the people’s job to hold those folks politically accountable,” said Peter Scheer, executive director of the First Amendment Coalition, a San Rafael, Calif.-based nonprofit that advocates for greater openness in government.
All legislatures allow people to watch and listen to their debates.
Closed-door meetings
But an AP review of open-government policies found that many state legislatures allow closed-door caucus meetings in which a majority of lawmakers discuss policy positions before public debates.
Others have restrictions on taking photos and videos of legislative proceedings.
In some places, lawmakers have no obligation to disclose personal financial information that could reveal conflicts of interest.
Legislators possess the power to change that but are sometimes reluctant to act.
A bill advancing this year in Massachusetts, for example, would strengthen the state’s public-records laws by limiting fees and setting new deadlines for state agencies and municipalities to comply. Yet it would continue to exempt lawmakers.
That mirrors the way things work in Washington, D.C. Congress exempted itself when it passed the national Freedom of Information Act 50 years ago. The president and his immediate staff also are exempt.
By contrast, many governors are subject to state sunshine laws.
Top lawmakers
To gauge compliance with public-records laws, the AP sent requests to the top Democratic and Republican lawmakers in all states and most governors seeking copies of their daily schedules and emails from their government accounts for the week of Feb. 1 to Feb. 7.
Of the more than 170 lawmakers who responded by mid-March, a majority denied the requests by claiming they were legally exempt.
The AP did not generally request emails from private accounts because rules and practices on those vary widely from state to state.
Some examples:
■ Mississippi House Speaker Philip Gunn said his emails and calendars were his personal property, not subject to the Mississippi Public Records Act and protected “under the doctrine of legislative immunity” dating back hundreds of years to English common law.
■ Denial letters on behalf of Illinois’ top Democratic and Republican lawmakers said, among other things, that releasing the records could amount to a “clearly unwarranted invasion of personal privacy” for individuals who contacted lawmakers without expecting their names to appear in the news media.
■ An attorney for Kentucky’s legislature said secrecy was needed “to encourage effective and frank communications.”
If lawmakers followed the same open-records rules that apply to others in government, the potential for some sensitive content being revealed would not be a reason for denying access to all of their emails.
Rather, they could redact or withhold particular emails covered by various sunshine law exceptions while releasing the rest.
Emails withheld
In several states, lawmakers who provided their records did withhold certain emails that they considered to be exempt from disclosure.
Texas Lt. Gov. Dan Patrick, who is the Republican head of the Senate, released 48 pages of emails but withheld the rest pending a request for a state attorney general’s opinion on whether confidential communications between elected officials and citizens are shielded from disclosure.
New Mexico lawmakers released hundreds of emails, mainly from constituents, but withheld three under an exemption for correspondence with certain legislative staff.
Florida free with information
Lawmakers in Florida, which has one of the more expansive sunshine laws, freely released emails from people urging them to support or oppose particular bills.
They also released calendars showing meetings with lobbyists for dentists, hospitals, teachers, the aerospace industry and others.
In Alaska, three of the top four lawmakers declined the AP’s request, saying their records can be kept confidential under the state constitution and “the deliberative process privilege.”
But Senate President Kevin Meyer, a Republican from Anchorage, provided his calendar and let an AP reporter look at his email inbox as an aide scrolled through it.
Open-records advocates said such case-by-case allowances ultimately leave it to the whims of whoever is in power to decide what the public can see.
