Welcome to Fourth Estate 48: Doug Ducey's office slow walks public records requests

The governor's office is slow to turn over public records

First off, welcome to Fourth Estate 48! I’m really happy that you decided to subscribe either for free or if you opted to pay, I double thank you. Especially for doing so sight unseen.

If you are seeing this and you haven’t subscribed please do so, it’s the only way to keep this newsletter alive for a long time. With your support, this newsletter will be the go-to spot for Arizona public records.

Public records are the cornerstone to learning what elected officials, appointed bureaucrats and their staff are really up to behind the scenes. As some in power tend to forget, they work for the people and we deserve to know how the government truly functions — or doesn’t, in some cases.

The actions of the people we select to put into power affect our lives every single day and the process isn’t always transparent.

I spoke to local First Amendment attorney Dan Barr who said public records show what you’re not being told at press conferences or by PR professionals. It’s about what shapes each decision that’s made, he said.

And in a lot of cases — especially in my experience reporting for several local outlets — the process is far from perfect, far from transparent and far from “prompt.”

That’s why I want to begin at the top — Gov. Doug Ducey’s office on the Ninth Floor of the Executive Tower.

Months ago, I requested the governor’s public records log¹ from 2018, 2019, 2020 and 2021 to see not just what type of records my fellow journalists were seeking, but also how the top elected office in the state was complying with our public records law.

It turns out, it’s not great.

The information was provided through “cover sheets” and included: the date the record was requested, the date the record was fulfilled, who requested the record and a brief explanation of the request. Ducey’s office handled these through the “cover sheets” up until May 2020 during the early days of Covid-19.

His office told me, “Due to a majority of our staff working from home during the pandemic and staffing changes this practice was discontinued and such records were not created after May 2020.”

From May 2020 through December 2021, records were sent over from their original email request and fulfillment response. I put all of that data into spreadsheets you’ll see throughout this post as well as the documents in full all the way at the bottom and at this link.

In calendar year 2018, it took Ducey’s office an average of 112 days to turn over records to the requestor. That’s between three and four months, but some were so egregious (300, 400 or even 500+ days to turn over) that it’s honestly quite shocking nobody sued the Ninth Floor.

FULL SPREADSHEET

Barr said when requests take that long — depending on what’s being requested — it’s an example of when “delay becomes effectively denial.”

What he means is when someone is making a public records request, there’s a time element to it. Governmental bodies take these stall tactics usually in pursuit of two potential outcomes:

1. In hopes by the time the records are turned over, the story is no longer timely/relevant or

2. Reporters can forget all about the request after awhile and agencies can get away with not turning anything over if there are no follow up emails to check on the process

It’s not just Ducey though. Two of his agencies during his tenure have been sued by the media and lost over their slow records fulfillment.

One was from Arizona Republic’s Richard Ruelas looking into Ducey’s Border Strike Force through the Department of Public Safety. A judge ruled in the Republic’s favor last year.

Another came from Amy Silverman, a local journalist and executive producer of KJZZ’s The Show, who is looking into how the state handles cases of abuse, neglect and financial exploitation of Arizonans with developmental disabilities for the Arizona Daily Star and ProPublica. The Department of Economic Security did not turn over records from the May 2020 request and a judge ruled in favor of the press back in January.

Of course, it’s a Catch-22 here. More newsrooms need to sue for public records to have them turned over as “promptly” as possible, but newsrooms also either lack the funding to take records cases to court, or simply would rather use those resources elsewhere.

“Rights are like muscles, and if you don't exercise them, they atrophy,” Barr said, adding, “The media has some fault here as well for allowing a lot of these public records requests to languish for so long. The Ducey administration and other public officials simply take advantage of that thinking, ‘Well, if you're not going to do anything, then we're not going to hurry to produce these documents.’”

That seems to be the case for how the Ninth Floor operates.

Some interesting notes in these records:

• One of the most ridiculous things I noticed is there were a lot of requests that seemed to go unnoticed while Ducey was working on his re-election bid in 2018, including a request from Ruelas amid the Red for Ed teacher strike. It took 289 days for him to receive communication records over a five-day span in April 2018.

• Ducey and his office don’t seem to be a fan of American Bridge, a Democratic opposition group. Some of their requests weren’t fulfilled until after 190 days (six months) 296 days (almost 10 months), 415 days (almost 14 months) and even 461 days (15 months).

• Former Phoenix New Times staff writer Stephen Lemons holds the record for longest time to receive his records. On April 4, 2018 he requested human trafficking keyword emails with Sen. McCain's office and did not receive those documents until October 9, 2019 – 553 days (or 18 months) later.

• There was at least one request over this four-year span from every single major local news outlet except for Fox 10 Phoenix, the former employer of Republican gubernatorial candidate Kari Lake.

• Average response time per year: 2018- 112 days (3-4 months); 2019- 76 days (2.5 months); 2020- 100 days (~3 months) and 2021- 71 days (2+ months).²

Full records from January 2018 to May 2020.³

Records from May 2020 to December 2021.

1. Credit for this request goes to former Phoenix New Times writer and Polk Award winner Joseph Flaherty, now with the Arkansas Democrat-Gazette, for writing a story based on Ducey’s 2017 records log and inspiring this request.

2. This data is slightly incomplete due to the way the Governor’s office began tracking the information through email responses. Around August 2021- December 2021 the emails lacked any organizational effort and all the requests were together followed by all the responses. Information through July 2021 all was neatly organized with requests and responses together.

3. Journalists and organizations: feel free to use these records at your own disposal, just credit them to Fourth Estate 48 and link to this newsletter.