Sunshine Week brings attention to state efforts to overhaul open records laws

You're reading Route Fifty's State and Local Roundup. To get the week’s news to use from around the country, you can subscribe here to get this update in your inbox every Saturday. In the meantime, be sure to read to the end as we've rounded up headlines from the week.

As civic groups and journalists mark Sunshine Week to highlight the importance of public records and open government, state lawmakers’ are undertaking efforts to overhaul their open records laws.

The fights in state capitols frequently pit reporters and watchdog groups against government officials. The good-government groups worry about the vanishing paper trail as elected officials and public administrators rely more heavily on text messages, video calls and hard-to-monitor apps to discuss important policy questions. State and local leaders worry about for-profit companies that mine public records for their own business purposes, inundating government workers with cumbersome requests. And politicians worry how increased scrutiny could affect their careers.

That’s the backdrop in places like Colorado and New Jersey, where lawmakers considered proposals this week to limit the scope of open-government laws.

Colorado Gov. Jared Polis, a Democrat, signed a bill into law Tuesday that exempts the legislature from the state’s open meetings law. The changes, which went into effect immediately, allow members of the General Assembly to discuss public business in serial meetings where no voting majority is present. It also declares that digital messages between lawmakers don’t constitute a “meeting” under the state’s open meetings law, a change from previous policy.

Lawmakers passed the legislation in response to two lawsuits they faced for secretive practices.

In January, a Denver judge ordered Democratic lawmakers to stop using a private ranking system to set budget priorities, because the third-party “quadratic voting” system ran afoul of the state’s open meetings law. “The explicit purpose of (Colorado’s Open Meetings Law) is to encourage public participation in the legislative process through an increased awareness of public matters,” Judge David Goldberg wrote.

Two conservative groups brought the lawsuit. “This illegal system let legislators off the hook from having to take public positions on legislation which keeps their constituents from knowing where their elected officials stand,” Michael Fields, president of Advance Colorado, one of the groups behind the lawsuit, said in response to the ruling.

This past summer, two Democratic lawmakers sued both Democratic and Republican caucus leaders in the House for skirting the state open meetings law. The pair said legislators routinely had substantive discussion about legislation without giving notice to the public as required by the law. They said legislators frequently used “ephemeral” messaging apps like Signal to send self-deleting messages to colleagues. In response, both caucuses agreed to stop using the apps and to start posting minutes and agendas of caucus meetings. The lawmakers who sued House leadership objected to the law passed this week.

House Speaker Julie McCluskie said the changes were needed to clarify what was and what was not allowed under the open meetings law. “We are grappling with hundreds of policy decisions. We are having to engage with one another multiple times a day, sometimes an hour,” McCluskie said Monday.

Steve Zansberg, the president of the Colorado Freedom of Information Coalition, criticized the changes. “It is profoundly disappointing that the leadership of both houses, and the governor, have chosen to effectively exempt one branch of government from our state’s public transparency law,” he said.

In signing the bill, the governor cited separation of powers concerns for letting lawmakers set their own meeting policies. “As a coequal branch of government, the Executive should rarely intrude on the inner workings of the Legislature, and the Executive Branch warrants the same deference from the Legislature on its internal operations,” Polis wrote.

In New Jersey, though, legislative leaders have slowed down the process of passing an overhaul to the state’s open records law because of widespread criticism from civil rights groups, unions, journalists and even the state’s first lady.

The sponsors of the effort, including Assembly Speaker Craig Coughlin and the Senate’s budget committee chair, described the revisions as a way of modernizing the state’s open records law. They said private data brokers are requesting information on dog licenses or real estate transactions, which can occupy town officials for hours at a time. Those commercial requests account for half of all records requests, county officials said.

The 2002 open records law “was enacted at a time when dial-up internet was cutting edge, Google was in its infancy and identity theft was your sibling borrowing your driver’s license to get into the college bar,” said Lori Buckelew of the New Jersey League of Municipalities, during an hours-long hearing Monday. “Fast forward 20 years, and not a week goes by that you do not hear of a data breach and calls for protection of personal identifying information. Under these bills, those protections are given.”

But the proposed changes sparked a quick backlash. Critics said a provision requiring government officials to redact information that could result in “harassment” of residents was too vague and unnecessary. They objected to part of the legislation that would require agencies to convert old records into an electronic format. And a proposal to eliminate the requirement that losing agencies have to pay attorney fees would make it difficult for ordinary citizens to get access to public data, they claimed.

“It’s great that you’ve met with the League and others, but this process here did not include people who actually file [records] requests,” said Charlie Kratovil, a Food and Water Watch organizer and journalist, according to the New Jersey Monitor. “They were not at the table, and this is being rushed through. So I think that the only appropriate course of action is to put the brakes on, to vote no, and to gather input before you take any action.”

The Assembly speaker announced on Thursday that lawmakers would pause before passing any changes. “We will take the time needed to meet with various stakeholders to modernize [the law] in a way that protects the public from having their personal information, drivers’ license numbers and other sensitive information available for anyone to see,” Coughlin wrote on social media.

Meanwhile, reporters in Nebraska decried a Friday ruling from the state supreme court that would allow state agencies to charge thousands of dollars in special fees to review public records. The high court upheld a $44,103 charge to The Flatwater Free Press to get documents related to nitrate contamination in groundwater.

“It will now presumably be even easier for any state agency or elected official or bureaucrat to charge any newsroom, and any regular citizen, the price of a Cadillac for public records—a price that in reality will likely cause the newsroom or Nebraskans to go away,” wrote the Free Press’ editor, Matthew Hansen. “To be clear: This was already happening regularly. It doesn’t take a law degree to guess that it will now happen more.”

On the other hand, lawmakers in Michigan are moving forward with an effort to subject the state’s legislature and governor’s office to the state’s freedom of information law, as a Senate committee advanced the measure on Wednesday. Michigan is one of only two states (along with Massachusetts) that has blanket exemptions for lawmakers and the governor. But bipartisan efforts from a pair of state senators to get rid of those exemptions have stalled for at least nine years.

“The sad reality,” said Sen. Jeremy Moss, the Democratic sponsor of the measure, “is that every scandal that we’ve endured here has also built the case for this legislation to move. So here we are, nine years into this project on Sunshine Week, seeing that light at the end of the tunnel.”

Keep reading as there’s more news to use below, and if you don’t already and would prefer to get this roundup in your inbox, you can subscribe to this newsletter here. We’ll see you next week.

News to Use

Trends, Common Challenges, Cool Ideas, FYIs and Notable Events

• LEAD PIPES: Flint held in contempt for missing water line replacement deadlines. A federal judge has found the Michigan city in contempt of court for failing to replace lead pipes that carry drinking water by the 2020 deadline that the city agreed to under a 2017 settlement of a lawsuit. A recent survey showed that at least 275 homes still had lead service lines. Also, at least 2,000 homes have damaged curbs, sidewalks or lawns from the replacement work that the city has not yet repaired.

• LGBTQ: Florida settles “Don’t Say Gay” school lawsuit. Students and teachers can discuss sexual orientation and gender identity in classrooms under a proposed settlement reached Monday between the state and lawyers for LGBTQ advocates who sued over what they call the “Don’t Say Gay” law. Activists say the deal clarifies vague language about what the law allows, while lawyers for Gov. Ron DeSantis says it keeps the Parental Rights in Education Act on the books.

• OPIOIDS: Oregon governor signs expansive drug addiction bill. Gov. Tina Kotek said she plans to sign the centerpiece bill that lawmakers passed in response to the state’s soaring drug addiction and fentanyl overdoses. The legislation will recriminalize possession of small amounts of hard drugs, reversing part of Measure 110, which voters approved in 2020. The bill has provisions to offer drug users multiple opportunities to enter treatment after an encounter with a police officer. The legislation also provides money for outpatient clinics, residential facilities, sobering centers, recovery houses, opioid treatment in jail, public defenders and court diversion programs.

• TOLL EVASION: Drivers dodging toll cameras cost authorities millions. Since the widespread use of electronic tolling, drivers have been hiding their license plates from toll cameras. Such tactics have cost the Dallas and San Francisco areas more than $33 million combined in tolls last year due to such tactics. The hit to New York City’s seven bridges and two tunnels was nearly $21 million, a 137% jump from 2020, the Metropolitan Transportation Authority says.

• HOUSING: Mayors blast Arizona Starter Homes Act, urge governor to veto. Gov. Katie Hobbs is considering whether to sign a new bill to expand affordable housing by lifting regulations to allow smaller starter homes on smaller plots and eliminating HOAs in new developments. But city mayors and vice mayors from Mesa, Phoenix, Goodyear and Yuma say it would cut out local input and upend cities' authorities to shape the look and feel of their communities.

• CAMPAIGN FINANCE: Oregon passes reform that limits contributions. Following recent elections that saw wealthy donors inject millions into key state races, lawmakers approved limits on the amount of money people and political parties can contribute to candidates. Oregon is currently one of roughly a dozen states that has no limits on campaign contributions, according to the National Conference of State Legislatures. To promote transparency, the bill also directs the secretary of state, starting in 2028, to create an online dashboard that lists the 100 largest contributors and shows how much money industry groups donate to candidates.

• POPULATION: More counties saw population gains in 2023. More U.S. counties experienced population gains than losses in 2023, as counties in the South saw faster growth and more Northeast and Midwest counties had population losses turn to gains, according to the U.S. Census Bureau. Among counties with a population of 20,000 or more, the 10 fastest-growing were in the South—six in Texas. The largest declines were in California’s Los Angeles County and New York’s Kings, Queens and Bronx counties.

• SCHOOLS: Minnesota governor signs “fix” to school resource officer rules. Gov. Tim Walz signed into law Thursday a bill clarifying use-of-force standards for school resource officers, a bipartisan fix to a law change last year that prompted many police departments to pull their officers from school districts. The language at issue prohibited school staff and school resource officers from using certain types of restraints and physical holds on students. Police officers who work in schools would now be allowed to hold students facedown on the floor, but they still have to follow other laws governing police conduct, including a ban on chokeholds.

• BALLOT MEASURES: Arizona GOP introduces new idea to block ballot initiatives. Legislation that passed through the Arizona Senate on Monday would ask voters to amend the state’s constitution to allow lawsuits against citizen ballot initiatives to proceed before the initiative goes on the ballot. The effect would be that interests opposed to a ballot initiative could go to court before the election, sparing them the expense of mounting a campaign against the measure. And it would force backers to spend money raised for a campaign on litigation instead. The idea is the latest in a string of Republican-backed proposals in the state to impose more restrictions on ballot measures.

• WORKFORCE: Florida invests in health care workers. Over the next decade, the Sunshine State plans to spend $1.5 billion on a package of “Live Healthy” bills aimed at retaining and attracting health care workers to the state, increasing innovation in the industry, establishing behavioral health teaching hospitals and providing some services to Floridians with disabilities. Although lawmakers negotiated how much money the initiative would cost, it received nearly unanimous support from both chambers. Florida Gov. Ron DeSantis has until March 27 to act on the bills.

• PUBLIC SAFETY: Following nationwide trend, Hawaii to expand electronic monitoring. The Hawaii Department of Corrections and Rehabilitation is in early talks with the judiciary to expand electronic monitoring of defendants on pretrial release in an effort to keep more defendants out of prison while awaiting trial. Proponents argue the GPS ankle bracelets are not only more cost-effective, but can also benefit defendants by keeping them in the community, reducing the stigma of traditional long-term supervision and limiting the disruption to family and work. The use of electronic monitoring has continued to increase nationally since the pandemic, leading legal researchers to warn that the technology punishes people who haven’t been proven guilty or have otherwise qualified for release.

• GREEN BUSES: Washington revs up plan to electrify 10,000 school buses.To start a decades-long transition of its more than 10,000 school buses from diesel to electric, the Washington Legislature put a $50 million down payment in the state’s operating budget. Following the lead of New York, which ordered all new school bus purchases be electric starting in 2027, Washington is aiming for a full switchover of its fleet by 2035. How the state will pay for it is unknown, but lawmakers cited kids' health as the impetus for the bill.

• DEI: NAACP calls for boycott of Florida’s public universities. In a letter encouraging college-bound Black athletes to “choose wisely,” NAACP leader Derrick Johnson is challenging a new state policy that bars public colleges and universities  from using government funds on diversity, equity and inclusion programs. “If these institutions are unable to completely invest in those athletes, it’s time they take their talents elsewhere,” said Johnson. Last year, the group issued a travel advisory for Florida, citing the state’s open hostility toward African Americans, people of color and LGBTQ+ individuals. University DEI programs have also come under fire in Oklahoma, Ohio and Wisconsin.

• HOUSING: HUD chief steps down. After nearly five decades in public service, including more than a decade in Congress, Housing and Urban Development Secretary Marcia Fudge said she is retiring from public life. The second black woman to head the agency, Fudge steered HUD through housing crises in the wake of the COVID-19 pandemic. Her last day will be March 22. Stressing that it should be a focus for both Democrats and Republicans, Fudge said that affordable housing “is not a red or blue issue. … It’s an American issue.’’ 

Picture of the Week

For those keen to be wearing green on St. Patrick's Day, WalletHub ranked 200 of the largest cities across 15 key metrics to find the best places to enjoy the holiday. The report ranks cities by the number of Irish pubs and restaurants per capita, their traditions, safety and accessibility, the likely weather forecast, and the costs of an average beer, hotel room and Irish meal. Boston; Chicago; Savannah, Georgia; Reno, Nevada; and Pittsburgh were the top five overall winners. From Chicago dyeing its river green to Savannah captivating “with its charming Southern hospitality,” there are a lot of cities in which to celebrate. We’ll see you at the local pub. Cheers!

What They’re Saying

“Bye. Don’t come back.”

—Texas Gov. Greg Abbott to bands who pulled out of Austin’s South by Southwest festival over the U.S. Army’s sponsorship of the event. Posting on X, Abbott said, “Austin remains the HQ for the Army Futures Command. San Antonio is Military City USA. We are proud of the U.S. military in Texas. If you don’t like it, don’t come here.”