Getting access to state legislatures

From the Summer 2011 issue of The News Media & The Law, page 18.

There are two broad types of laws that provide public access to state legislative information: those that regulate access to legislative sessions and those that provide access to legislative records. The laws vary in each state.

To get access to legislative information, it is also important to first determine whether the information you seek is subject to an open meeting or open records law, legislative session rules, or another law entirely.

Legislative sessions and committee meetings

Access to legislative sessions and committee meetings are generally covered by a state’s open meeting law, the state constitution or legislative rules. Which law applies and how the right of access is written can make a huge difference for reporters and the public when trying to get information about how states are run.

Two states that have very different methods of granting access to the state legislative meetings are Massachusetts and Pennsylvania. The two states are hardly prime examples of either end of the openness spectrum, but are good examples to show what happens when different access methods are used.

Pennsylvania is a relatively open state: It uses its open meeting law to require all meetings in the Legislature be open to the public except party caucuses and other limited exceptions. Massachusetts relies solely on session rules, from the individual bodies and the joint session rules, to open its meetings, and the result is a less-than-transparent system.

The Joint Rules of the Senate and House of Representatives in Massachusetts, which govern meetings where members of the House and Senate are present, require that joint sessions and committee meetings “be open to the public, unless a majority shall vote otherwise.”

The House rules, which govern the proceedings of the House of Representatives only, provide a stricter standard for closure. Only executive conferences may be closed to the public and the rules provide that executive conferences may only be held to discuss private issues of members, member discipline, legal strategy, and the purchase or lease of property by the state if publicizing the discussion could hurt the state’s negotiations. Members must vote in public on the issue of closing a meeting. The rules also allow for public matters to be discussed among members socially “so long as no final agreement is reached.”

Senate rules do not appear to provide for public viewing at all except for the broadcast of “formal sessions” or access to the reporters’ gallery, which is subject to approval by the president of the Senate. There are no enforcement provisions for the openness requirements within the House, Senate or Joint Rules other than an ethics committee, which reviews all instances of breach of session rules.

Robert Ambrogi, an attorney and executive director of the Massachusetts Newspaper Publishers Association, said legislative committees in the state work almost entirely in closed sessions, holding public sessions only for votes that are often “rubber stamps” of pre-negotiated deals.

Even when the Massachusetts open meetings law was amended in 2009, largely to centralize enforcement of the law under the state attorney general, Ambrogi noted that there was not public debate on the changes and he did not know about the amendment until it had already passed.

The amendment was added “last minute” to a larger ethics reform bill that was passed in reaction to several bribery scandals, Ambrogi said. Among other things, the ethics reform bill created harsher penalties for public officials who accept bribes or solicit gifts.

The Massachusetts Legislature has the illusion of openness to many because the voting sessions are open to the public, but true openness “is not just to see the end result, but so you can see what goes into producing that result,” Ambrogi said.

Ambrogi said Massachusetts residents are deprived from being able to fully understand their government because the Legislature does the majority of its business behind closed doors.

“A lot of the work of the Legislature takes place in committee meetings and conference committees and all of that happens outside the public eye,” Ambrogi said. “You want to be able to see the deliberation and the thought process.”

While session rules have not resulted in broad openness in the Massachusetts Legislature, open meeting laws are not the only solution.

Many states have engrained a right of access to the state legislature within their state constitutions. Colorado, Florida, Georgia, Illinois, Montana, Ohio, Oregon and South Dakota have constitutional provisions that require legislatures to be open to the public.

For example, the Ohio Constitution reads: “[P]roceedings of both Houses shall be public, except in cases which, in the opinion of two-thirds of those present, require secrecy.” Colorado’s constitution requires that meetings of the Legislature and their committees “shall be open, unless when the business is such as ought to be kept secret.”

Access through a constitutional provision gives citizens a legal right that is enforceable through the court system, which, like open meeting laws, provides real legal remedies. However, many of these provisions, like Colorado’s, lack definite terms or appear to leave a lot of discretion for the legislature to close meetings. As a result, these states often also open their legislatures through statutes. Illinois, Oregon and Colorado, for example, also require openness of their legislatures statutorily through their open meeting laws.

Steven Zansberg, an attorney in Colorado, said, while the constitutional provision may have opened the state’s Legislature first, it is the open meeting law that enforces it.

“I don’t know if anyone has ever used the constitution to challenge a closed meeting, but I know of several instances where the open meeting law has been successfully invoked to challenge the Legislature,” Zansberg said.

Zansberg added that the constitutional provision requiring the Legislature to be open has been used to challenge the open meeting law. The plaintiff argued that the statute removed the Legislature’s ability to determine what “ought to be kept secret.” But the court held in Cole v. State that the law and the constitution were not in conflict, and ruled that the open meeting law remained in effect and the Legislature must comply.

For states where open meeting laws govern the actions of the state legislature, such as Pennsylvania, accountability and openness are less of a problem than what Ambrogi described in Massachusetts.

In Pennsylvania, which defines the term “agency” in the Sunshine Act as specifically including “the General Assembly,” reporter Jan Murphy of The (Harrisburg) Patriot-News said she was unaware that access was a problem elsewhere and cannot imagine being able to do her job without her present level of access to legislators.

Access to legislative sessions and committee meetings is “invaluable” to her work, Murphy said.

“I don’t know how else I would explain . . . bills to the public,” Murphy said. “Having an open committee process is so valuable for the public to understand what is shaping the law.”

Committee meetings are where legislators hear testimony about proposed bills and then take that input to shape the law, Murphy said. “If there are no reporters to hear [testimony], how else could you know why [certain] parts of bills were considered essential?” Murphy asked.

Having access to the committees is essential for Murphy and other reporters to explain to the general public the impact and importance of bills being considered, she said. And access is not just about quoting from testimony, Murphy added. She said she often uses these meetings to find who to talk to about certain topics, and who the experts are and whether they include a particular legislator or the people brought in to testify before the committee.

The public deserves to know what is happening in government, and the best way to achieve that is to allow reporters access to the government, Murphy said. Being able to attend and report on committee meetings allows her to not only explain to her readers what is going on, but also the motivations for the different bills, Murphy said.

Getting access to the meetings of public representatives is only part of the access story. Reporters also need to get access to legislative documents. To do so, reporters generally rely on state freedom of information laws.

Legislative records

While the level and specificity of access to legislative records varies state-to-state, the general rule is that legislatures are included under state open records acts. Few state open records laws exempt, outright, the state legislature from their purview.

While the Michigan Legislature is included as a body in the open records statute, individual members are not subject to its provisions. Todd Heywood, senior reporter at The Michigan Messenger, said records access provisions are set by the Legislature’s speaker of the House. As a result, the policy lacks consistency and tends to shift with every new administration and the changing of political affiliations, Heywood said. And with the administration voted in after the 2010 elections, access has been severely diminished, Heywood said.

“I used to be able to get basically anything [under the previous administration], but now it’s like pulling teeth,” Heywood said.

Heywood said the current political leadership in Michigan is secretive. He said he can no longer even get access to legislators’ calendars to see who they are meeting with on key issues.

“There’s a real lack of transparency,” Heywood said.

In Georgia, while the statute does not necessarily exempt the state Legislature from the open records law requirements, an appellate court has. In Fathers Are Parents Too v. Hunstein, the Georgia Court of Appeals held that the Legislature was not subject to the open records law because of the history of the body “exercis[ing] the authority to adopt its own internal operating procedures,” and its adoption of procedures in conflict with the state open records law.

As a result, records disclosures are done on a discretionary level, Aaron Gould Sheinin, a reporter at the Atlanta Journal-Constitution, said. With that discretion comes inconsistency, Sheinin said.

“They annually give me details on the per diem payments made to lawmakers, but this year when I asked for a detailed list of legislative staff and their salaries, it was denied,” Sheinin said.

In California, the state open records act does not apply to legislative records; however, there is a separate statute, the Legislative Open Records Act, which applies instead. Tom Verdin, California political editor for The Associated Press, said the Legislative Open Records Act is “far more restrictive” than the state open records act.

Requests for records that are routinely provided from other state offices under the records law are denied when requested of members of the state Legislature, Verdin said. He is routinely denied requests for lawmakers’ air travel and use of taxpayer-funded vehicles, he said. Also, Verdin said he has “requested lawmakers’ daily calendars so we can see who they meet with, but the Legislature has refused, even though the governor and other statewide officeholders release their schedules.”

Legislative records, even if statutorily open under an open records law, are subject to review for possible exemptions that may prevent their disclosure. States generally have an exemption for internal work product or working papers, documents created as part of the deliberative process. These records include previous drafts of legislation and internal memoranda between staff members about specific bills.

Bob Tkacz, a correspondent at Fisherman News, said the deliberative process exemption is overused in Alaska. “It has been a huge loophole in the law,” Tkacz said.

While some legislators are open and honest, others find ways to get around the law’s requirements, Tkacz said. He added that there is a real problem when legislators cite figures to the public, but then refuse to give information on how those numbers were calculated “because it was part of [their] deliberative process.”

Tkacz said the deliberative process exemption is being used to withhold documents simply because the legislators use the documents when considering legislative action.

In contrast, Joan Cartan-Hansen at Idaho Public Television said Idaho has an open system with few exemptions.

“Almost everything related to the [legislative] process is open,” Cartan-Hansen said.

Some of the most important documents that Cartan-Hansen noted being able to access through the state’s open records law are budgetary information and documents legislators rely on to make decisions.

Cartan-Hansen said she has never had a problem getting records that legislators use to educate themselves of an issue leading up to the creation of a bill.

“Undoubtedly there are problems,” Cartan-Hansen said, but she noted, as a success, a recent series of events when records were released after a public official drastically changed his view on the status of the state’s education system, leading to a reform bill being passed.

To find out why the official’s opinion changed so drastically and so quickly, the teacher’s union and reporters, through wrangling, were able to get the calendar, email messages and letters from the official. The documents showed who the official met with to discuss the education system and led to his drastic reversal of his campaign statements that the system was sound.

“I still don’t know if they felt they got everything,” Cartan-Hansen said, but once the official met with members of the Legislature and submitted his documentation to the legislative committee, the documents “were fairly easy to obtain.”