While Arizona’s Public Records Law is among the nation’s best in comparison with similar laws in other states, it has always lacked any punitive teeth. Officials found to have wrongfully withheld public records under this law are simply required to produce them — and pay any attorneys’ fees the aggrieved requestor incurred.
While Senate Bill 1499 is praiseworthy for giving the public an ombudsman to represent its interests to procure public records — and indeed it has the potential for improved access to government — it nonethess has the same troubling shortcoming as the Public Records Law.
The bill, being given its first legislative commitee hearing Thursday, provides $250,000 a year to form a state-appointed public-access counselor’s office from which those needing to examine public records may seek help if their legitimate requests are initially rebuffed by a state official or agency.
The counselor is to issue an opinion regarding a record’s eligibility for release within 30 days of the request — seven days if he or she deems it to have “priority” — but the bill levies no penalty on government officials or agencies who ignore it. The only remedy left to the disappointed member of the public is the one that has always been available: hiring a lawyer and filing a potentially expensive lawsuit.
At least it provides a person without the wherewithal to financially maintain such a suit with another avenue to obtain access. Its progenitor — which in 1999 created a similar office in Indiana — has been praised by several of the state’s newspaper editors as well as government officials there.
But if an agency can ignore such a request without any direct penalty, what good would such an advisory opinion have?
Another bill dealing with public records, Senate Bill 1498, is reminiscent of California’s 1992 anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. It would prevent any public body from filing a declaratory-judgment or decree action against a requestor without his or her consent to settle the dispute.
Arizona government agencies have on occasion filed such “SLAPP” actions, designed to force people wanting access to give up their efforts.
SB1498 would be an effective shield for people wanting to know what the government is up to and have a right not to fear retaliation for it and deserves passage.
If it is also approved, SB1499 would give the public another voice on its behalf. How effective that voice would be in calling on government to do its duty to provide evidence of its conduct to the people is an unanswered question.