PHOENIX — State utility regulator Bob Burns wants lawmakers to tighten up the state’s Public Records Law, possibly setting up a “gatekeeper” who would have to approve — and could deny — requests.
Burns, a former state Senate president, said his concerns started with the ongoing battle for the text messages of fellow commissioner Bob Stump. The Checks and Balances Project is questioning a series of texts just ahead of the 2014 Republican primary.
Burns said that what already is known about the pattern of Stump’s tests “certainly looks a little bit strange” and may merit the kind of requests made of the Arizona Corporation Commission for the contents.
But Burns told Capitol Media Services on Thursday the commission is being overwhelmed with requests for emails, phone records, calendars and other documents, some going back to 2007. “And the taxpayers are picking up the tab,” he said.
His solution would extend beyond the commission: Any change in law would apply not only to every state agency but every level of government down to counties, cities, school districts and even special agencies like the Central Arizona Project.
“I’m not advocating that something gets hidden or that you can’t get to certain things,” Burns said. “I just think there needs to be some kind of parameters on how this is handled because I think it’s getting out of hand.”
By “parameters,” Burns said he is looking at what exists for police: Present a judge with some evidence a crime is being committed to can get a search warrant.
“Maybe there needs to be somebody, maybe not to the level of a judge, that examines the request and requires an explanation of why it has to be (records going back) five years ago, 10 years ago, everybody that works in the building or whatever,” he said.
Using that model, Burns said a gatekeeper might question the breadth of the request for all of Stump’s texts over a period of more than 10 months. That request came after a text log — simply a list of texts sent and received — turned up the numbers of Republican candidates, campaign consultants, an individual running an independent expenditure campaign and utility executives shortly before the primary.
But Burns said he thinks such a request would survive the preliminary screening he is suggesting.
“The timing and the number of and the people who were contacted certainly looks a little bit strange,” he said of the log of Stump’s messages.
“I think that’s something that could be explained to whoever might be the gatekeeper on trying to keep a handle on what’s going on,” Burns continued. “And I would think that even if an investigation started and you got part-way into it and you started to find certain things that look suspicious, then there ought to be obviously a way to expand the investigation.”
Attorney General Mark Brnovich said Burns may have a point in wanting to look at the cost to taxpayers of what could be little more than fishing expeditions. But Brnovich said it would be a mistake to use the model of search warrants as a screening process for public records requests.
“The reason we have a constitutional amendment (against unreasonable search and seizure) is to protect private individuals in their privacy,” he said. That’s not the case when the object of the search, such as it is, is the government.
“You’re not a private party,” Brnovich said. “We’re doing the public’s work and the thought is the public should know what we’re doing and how we’re doing it.
Gov. Doug Ducey said he has not had a chance to discuss the proposal with Burns.
“Transparency is important, and accessibility to the press is important,” Ducey said. But he said that doesn’t end the discussion.
“Oftentimes in legislation there’s room for improvement,” the governor said.
Burns said that, if nothing else, a gatekeeper would force those requesting records to be more “focused” on what they need rather than simply asking for anything that might be related. But Burns said he’s not married to the idea.
“I don’t have the answers,” he said. “I’m just sort of laying the problem out there and suggesting that there is a model that could be followed possibly.”
But media attorney David Bodney criticized the idea.
“Another layer of administrative delay and expense in the process would not advance the law’s purpose,” he said. And Bodney was unmoved by the fact that producing the records costs money.
“By definition, these records belong to the public,” he said. “One cost of doing business in a democracy is the cost of records custodians making those documents available as promptly as possible.”
Bodney also questioned the need to amend the law, saying that judges in Arizona have ruled that agencies can reject requests that are “unduly burdensome.” He said that forces both sides to work together, in a good-faith effort, to ensure the requests are no broader than necessary.
This isn’t the first bid to tighten up the laws.
In 2014, Rep. David Stevens, R-Sierra Vista, proposed allowing public agency to ignore requests if they do not “identify the requested records with reasonable particularity” and the request “cannot be narrowed or reduced to a manageable degree.” Stevens said that was designed to prevent such requests from becoming a financial burden on all taxpayers.
That language was rejected by media representatives, and a compromise targeting “unduly burdensome or harassing” requests ultimately failed.