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Why a Free Press?: Legislature opens public records already public

Arizona has a sweeping public records law that says if a public body creates a record meant to be public or that serves as a memorial of the body's actions, it's public. Unless the Legislature says it isn't.

Arizona has a sweeping public records law that says if a public body creates a record meant to be public or that serves as a memorial of the body's actions, it's public. Unless the Legislature says it isn't.

You’re not supposed to look a gift horse in the mouth. OK, I won’t.

So thanks, Legislature, specifically Tucson Rep. Jonathan Paton, and Gov. Janet Napolitano. You have made public a class of records I always thought were public.

As part of Paton’s successful attempt to reform some practices of the state’s Child Protective Services, the Legislature and governor passed and signed HB 2159, which makes discipline records of state employees open to public inspection.

Hooray.

But when I read a few months ago that opening these records was part of CPS reforms, I thought, “Weren’t they?”

Arizona has a sweeping public records law that says if a public body creates a record meant to be public or that serves as a memorial of the body’s actions, it’s public. Unless the Legislature says it isn’t.

But of all the records created by state governments, there are only about 500 exemptions.

That means the overwhelming majority of the state’s records are public.

If the public body can prove a record’s release would cause a specific harm to the state or to a person, it can be withheld.

But the Legislature never exempted from release the records on state employee discipline. So they’re public, unless specific harm can be shown.

Enter the bureaucracy.

Title 2, Chapter 5, of the state’s Administrative Code covers personnel policies and records. Section 105 directs human resource directors to release only a handful of records from a personnel file.

Discipline records aren’t on the list.

So, though the Legislature never exempted them, the state’s bureaucracy effectively did because the only way HR directors would release them was by court order.

As often stated in this column, the state’s records law lacks teeth: There is no penalty for a public employee wrongly withholding a record. And the only way to get that withheld record is to sue.

That’s a cumbersome, expensive process. The public, including the media, have to decide whether the record requested is worth the bother and expense.

Too often it’s not.

Lawyers call that a “chilling effect.”

Paton, et al., just warmed things up a bit.

At first blush, it might seem a little invasive to see an employee’s discipline records.

But these are public employees. As such, they should be held accountable to the public for their actions.

Or lack of action, as was the case in the deaths of three Tucson children last year in which CPS workers failed to take action that might have helped keep these kids alive.

Opening the records holds accountable more than just rank-and-file employees. It spotlights their supervisors as well, showing how they lead their sections or departments.

Thus the open record protects the rank and file. If supervisors abuse their powers, it can be quickly exposed and dealt with.

Of the four CPS reform bills signed into law, this one is the most important because it applies to all government employees in the state, from water utilities up to the governor (court employees are excluded because of separation of powers).

The other significant reform dealt specifically with CPS records.

The child welfare agency has operated under a cloak of secrecy since its inception.

The secrecy was intended to protect abused children from risk and public ridicule, encourage reporting of abuse and protect children and families that may be dysfunctional but are not criminal in behavior.

A noble reason, but it made the agency only accountable to itself. HB 2455 requires CPS to release records associated with a fatality or near fatality.

Hooray again.

Other records, though, still remain under the cloak. Except if a CPS employee screws up and is disciplined for it.

That we now get to know.

Mark B. Evans is a Tucson Citizen assistant city editor.

Reach him at 573-4614 or mevans@tucsoncitizen.com.

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Read Tucson Citizen Assistant City Editor Mark B. Evans’ blog, “Why a Free Press?”

If you need help accessing records, call 573-4614 or e-mail mevans@tucsoncitizen.com

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