November 13, 2015: This article has been updated.
Gaps in government transparency and accountability in Arizona over the past few years are not hard to find.
In late 2013, stacks of Child Protective Services files were found dumped in an alley in Phoenix, shedding light on an agency in meltdown. The 2014 Arizona elections saw unprecedented “dark money” spending, mostly going toward electing the governor and state utility regulators. And in early 2015, Arizona’s newly inaugurated governor, Doug Ducey, tried to establish a state inspector general, but failed after the plan was criticized harshly for creating a “secret police” that would operate with little transparency and answer only to the governor.
The Copper State ranked a little above average in a new State Integrity Investigation, a data-driven assessment of government accountability and transparency in all 50 states by the Center for Public Integrity and Global Integrity. Arizona received an overall score of 64 – a D grade – and ranked tied for 22nd among all the states.
Three years ago, Arizona’s State Integrity score was 68 for a D+, but it ranked 30th among the states. The two scores are not directly comparable, however, due to changes made to improve and update the project and methodology, such as eliminating a category for redistricting, a process that generally occurs only once every 10 years.
The latest report card shows strength, particularly in relation to other states, in a couple of categories: judicial accountability, where Arizona ranks 2nd in the nation with a score of 77 (C+), and internal auditing, where the state tied for 4th with a score of 87 (B+).
But Arizona earned an F in six of the 13 categories, getting failing grades in lobbying oversight, pension management, ethics enforcement, executive accountability, civil service protections and access to information.
Lobbying oversight still weak
This year’s State Integrity comes in the wake of a major lobbying scandal that rocked the state for years, after The Arizona Republic in 2009 revealed criminal wrongdoing involving officials of college football’s Fiesta Bowl, including a scheme to reimburse employees for their donations to politicians. Today, the state continues to receive bad marks for poor oversight of lobbying activity, financial disclosure loopholes and vaguely worded reporting statutes.
Despite past calls to improve on these weaknesses, nothing changed. State lobbying statutes remain the same as when lobbyists and legislators alike failed to report the free Fiesta Bowl junkets for those who went on to vote in favor of legislation helping the college football post-season game.
The secretary of state’s office collects reports of lobbying activity, but it is neither required nor authorized to perform compliance reviews. Such lax oversight has created a reporting regime that allows for tens of thousands of dollars to be reported erroneously in a single transaction.
Reporting exemptions allow about 90 percent of all lobbying dollars spent in the state to go reported without listing a beneficiary, either because a large group of public officials was invited to a lobbying event, or because the lobbyist reported spending less than $20 to promote his or her clients’ interests.
The county attorney who investigated the Fiesta Bowl scandal said the state’s statutes could be read different ways, leading to different interpretations of requirements. As a result, none of the lawmakers who failed to report the junkets in their financial disclosure forms were subject to criminal prosecution.
Sam Wercinski, executive director of the Arizona Advocacy Network, and Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, both favor a comprehensive ban on gifts for elected officials. They also said they think a current citizen petition drive, aimed at implementing a gift ban, may find enough to support to end up on the 2016 ballot.
Wercinski said polling shows a public willingness to go beyond even greater lobbying disclosure.
Not-so-public records
Almost across the board, Arizona agencies consistently fail to follow key principles for “opening up” government data, which the Sunlight Foundation, a nonprofit watchdog group, circulated in 2010 as a policy prescription to make information “open and accessible to the public.”
These include adherence to ideas like “primacy” — in which the government makes data available in its primary or most original form possible, with details on how that data was collected. That would apply to master files and raw data, not merely a summary file or descriptions of what is contained in that master file. This would enable the public to verify that the information was collected properly and recorded accurately.
Kathryn Marquoit, Arizona’s assistant ombudsman for public access, offers guidance and dispute resolution when there’s disagreement over how public records are being handled. She said original files fall squarely into the state’s public records laws.
“If a document exists, the public has a right to see the entire document or a redacted version,” she said. “I don’t think a summary is an acceptable substitute.”
Another common shortcoming involves data files that cannot be loaded into spreadsheet software, including “snapshot” versions of original spreadsheets captured in PDF files, which cannot be manipulated. Arizona agencies have expressed concern that data can be edited or altered if original data files are made available to the public.
Marquoit said the possibility that public records could be misused is not an acceptable reason for withholding them. “Anyone can misuse a public record,” she said, adding that not complying with public records laws based on those fears would “completely obliterate the public records laws.”
Court cases have touched on these issues with rulings that agencies do not have to create new files for public inspection, and that government documents and data are considered public records.
The open government prescriptions call for making data available online and at little or no cost. But in Arizona, large databases such as lobbying disclosure records and campaign finance reports are available only on compact disc for $25.
Trouble keeping up with technology
Despite shortcomings in making state information more accessible, Arizona is widely regarded as having a strong public records law that encompasses virtually all records of government business.
David J. Bodney, a First Amendment attorney with the Phoenix-based law firm Ballard Spahr, said the key question is about the purpose of the record.
“If the record involved public business or the transactions of public business, there is a strong presumption that the record is public,” Bodney said. “It’s up to the agency to demonstrate that it fits into one of the exemptions.”
The exemptions include confidential, privileged and private business information and content whose release would be contrary to the best interest of the state.
But recent records requests have led to confusion over how text messages and third-party messaging applications are to be treated by government agencies. In May, a Washington-based advocacy group asked the Arizona Corporation Commission to turn over a swath of text messages. But whether the records still existed, or were supposed to have been maintained, became a topic of disagreement between the commission and the group.
The issue remains unresolved, as the commission struggles to comply with requests to retrieve texts from the latest models of phones.
Marquoit said enforcement and application of public records laws when it comes to text messages is “very tricky,” mostly because of the way the technology works. Text messages or third party messaging apps are not easily backed up, the way government emails can be, she said, so if those in possession of a phone don’t physically provide access to it after a request has been made, the application of law is not clear.
Bodney and other political observers say they think there will be bills proposed in the coming legislative session aimed at changing state public records laws.
Update, November 13, 2015, 3:00 p.m.: This article has been updated to say Arizona is now tied for 22nd overall, with Maryland, due to a correction in Maryland’s report card that improved that state’s score. Arizona’s score has not changed.