A little known law showing Arizona's anti-transparency
A 2004 bill from the Arizona Legislature allowed some state agencies the discretion to redact or withhold records without explanation that most people likely didn't know even existed.
When I request records, I always make sure to ask for a redaction log so I –– and therefore you, dear readers –– can understand why something was redacted from whatever documents are turned over.
Most redactions are pretty self-explanatory, like shielding someone’s social security number to avoid any potential identity theft.
But when I requested calendars for elected and appointed officials, I wasn’t expecting to learn something new about public records.
We actually do not provide a redaction log. Per A.R.S. § 39-121.01(D)(2), it expressly exempts ADCRR from having to provide a log and reasons for withholding records.
That’s what the Department of Corrections told me when I asked for a redaction log since they said redactions were holding up my records from being fulfilled.
I had no idea.
Looking at the statute, it exempts not just Corrections, but also Department of Juvenile Corrections, Department of Public Safety and the Motor Vehicle Division of the Department of Transportation from having to explain why they are redacting or withholding records.
This is incredibly problematic and has potentially led to government bureaucrats deciding to not turn over public records without needing to justify. Who knows how many public records have not come to light because of this provision and unless someone takes them to court (or changes the law)1 we may never know.
To me, if the Department of Corrections isn’t willing to explain redactions on Director David Shinn’s calendars, what else are they willing to hide from the public?
I asked the agency to voluntarily explain upcoming redactions, since it’s not like I was asking them to un-redact anything, just tell me why they are choosing to redact areas, they still said no.
“We understand the interest of transparency and will be happy to provide the responsive records as they become available. We are unable to make an exception to providing a redaction log.” (Emphasis mine)
They are “unable.” More like they are “unwilling.”
I asked a few reporter and lobbyist friends if they knew this law existed and none of them had.2
I started to dig into Arizona’s public records history to find out how this all came to be.
Huge shoutout to the kind folks at the Arizona Legislature who helped me track down this info.
Senate Bill 1269 passed through both the House and Senate unanimously in 2004. It was this bill that made the current law possible.
Sponsored by Senator Bob Burns (who would later become Senate President and Chairman of the Arizona Corporation Commission) the original language of the bill was just to create a law that would require all governmental bodies in Arizona to explain the withholding and redacting of public records.
The bill quickly garnered support of Republicans and Democrats, the media (media attorney David Bodney spoke in favor during committee) and a host of others.
Like most bills, there were certain areas supporters weren’t too keen on, but everybody was willing to work out some of the kinks before any bill became law.
Watch the February 24, 2004 committee hearing here:
But while there was still unanimous support for the bills, which Democratic Gov. Janet Napolitano signed into law, the bill was amended on the floor with input from DPS and DOC, according to Burns, but was not open to further public testimony.
Here, Burns and Senator Jay Tibshraeny engaged in a back-and-forth during the committee of the whole on the bill to discuss Burns’ amendments at the behest of the agencies.
“I believe that the Department of Public Safety and the Department of Corrections had some problems with this and we met with them and I believe that their concerns have been answered,” Burns said on the floor.
Those changes or concerns were not discussed in detail.
When it came time for the final vote on the floor, there wasn’t any discussion.
I honestly don’t see a logical reason why this is a good idea, especially in the eye of transparency in government, an area that Department of Corrections is severely lacking on virtually every single level.
But to grant them and other agencies complete freedom to withhold or redact records without any explanation is dangerous and raises the questions of what the public hasn’t seen in the past 18 years since this became law.
If any lobbyists or lawmakers would be willing to run this bill, please email me at dillon@fourthestate48.com
If anybody remembers this bill becoming law or has any other pertinent details they’d like to share, let me know.