Pima County Attorney Laura Conover faces criticism for a push by her office to create “reasonable boundaries” around public records requests.
In the proposal, the office cites reviewing records as a “significant workload for public employees and delays for requestors,” as one of the reasons to pursue new limits on access to public records. There currently is no state law or prospective bills that provide funding for the increased workload or provide guidelines so requests remain reasonable rather than excessive, the office says.
Another point the proposal made was that many requests use broad language or require the review and redaction of various records in different formats, like paper and digital formats, which is a time-consuming endeavor, placing the cost on the public with “very little help in current law to allow for recouping the cost.”
“Charging for broad requests that require viewing voluminous records or difficult to access records would help deter harassing and voluminous (requests),” the proposal says.
The prosecutors’ office suggests that all public agencies, rather than just local law enforcement, be able to establish a onetime fee so they can recover some of the cost of reviewing video, which could mean a $46 charge per hour to the public for review of a video.
“Only local law enforcement, such as Pima County Sheriff’s Department, may establish this fee and, therefore, no other Pima County office can establish such a fee, such as the Pima County Attorney’s Office, which reviews hundreds of hours of video each year in response to public records requests,” the proposal says.
The proposal also seeks to amend the state law to give public officials or agencies the right to sue over a request deemed “vexatious or frivolous” records requests.
Other proposals include adding certain Freedom of Information Act standards, like exemptions for records solely related to internal personnel rules and practices, inter-agency memorandums or letters and records concerning an ongoing criminal investigation. Conover’s office also suggests allowing recovery of the cost for conducting a public records search and reviewing records, funding for public officials and agencies to respond to the requests, and creating an enforceable process where employees can work with requestors to narrow requests that produce more that 5,000 pages of records.
Doing this, the proposal says, would help counties save costs due to the “lessened impact on personnel who respond to public record requests and decreased software costs to manage such requests.”
Conover, who currently is in a legal fight with a former prosecutor over his request for public records, defends the effort.
Conover says the need to amend public records law comes from the emergence of body worn camera footage. She says as more law enforcement agencies adopted body worn cameras, her office became aware there was no planning for the kind of personnel and resources that would be needed to review the footage before it can be released to the public.
“One hour of body worn camera footage takes about three hours to distribute to the public or parties. … While the current law allows law enforcement to charge to keep the situation under control, they forgot to include us. So we have become this pipeline, creating more and more voluminous requirements,” Conover said.
Supervisors back off plan
On Tuesday, the Pima County Board of Supervisors voted to remove the item from the county’s legislative agenda after former county attorney chief criminal deputy David Berkman told the supervisors the proposal may have something to do with his ongoing lawsuit.
Berkman is suing the prosecutors’ office over records regarding the Pioneer Hotel Fire. In a recent hearing, Berkman told Pima County Superior Court Judge D. Douglas Metcalf he is seeking $5,000 in sanctions from Conover, claiming she has yet to produce all of the public records he requested.
“I have a feeling that this whole matter with the public records may be a response to a public records request I made and a lawsuit I filed …. She fought me tooth and nail and this is just another attempt to hide matters or make it more difficult for the public to get it,” Berkman told supervisors.
When discussing the legislative agenda, Supervisor Rex Scott asked to remove the prosecutors’ office proposal due to Berkman’s statements.
“I don’t think that the board and the county as part of our legislative agenda program should get involved in whatever is accruing in between the current county attorney and the former deputy attorney,” Scott said.
Sam Brown, the office’s chief civil deputy, told the board the additional burden brought on by redacting video from body worn cameras and the increase of communication by electronic devices increased the cost of public records and has nothing to do with one requestor.
“This is an issue that has been on the radar of the county attorney for many years ahead of this one individual’s case,” Brown said. “This is not about one person.”
In the end, the supervisors voted 3-2 to remove the proposal, with Matt Heinz and Adelita Grijalva voting no.
‘Obvious deterrent’ to records access
The county attorney’s recommended solutions have raised some eyebrows about transparency and the public’s access to records. According to the county attorney’s website, reform, transparency and accountability are Conover’s core objectives.
While charging for public records like videos might help those reviewing them, it could possibly deter community members from requesting records if it is too expensive.
David Loy, legal director for the First Amendment Coalition, a nonprofit based in California that protects and promotes a free press, freedom of expression and the people’s right to know, said anything that interferes with public access defeats transparency and impairs accountability.
“Financial barriers are an obvious deterrent to accessing or obtaining public records,” Loy said. “Public records belong to people and people should not have to be paying any more than just barely minimal costs of duplication. Something like $46 an hour for reviewing videos is an obvious financial barrier, which means public records would be available only to people with money, which is antithetical to democracy.”
Berkman said he was glad the Board of Supervisors rejected the proposal, saying coming up with something that restricts the people’s right to know what the government is doing “is a bad idea on every level.”
“She ran on transparency and this is the most un-transparent proposal in the world,” Berkman said of Conover, an elected Democrat. “I just think the public has a right to know and for a public official to make it more difficult for the public to know what’s going on in the office is not appropriate.”
When asked if she thought some of the suggested solutions could deter the public from requesting records, Conover said she believes more requests could be responded to promptly due to her office’s proposal.
“The problem is we’re not allowed to prioritize what looks to be like legitimate public records requests that should be responded to promptly. We have to just deal with anything that comes in and when there’s no skin in the game they can just ask us for anything,” Conover said. “Then no one else gets what they lawfully deserve as quickly as we would like them to have it.”
For example, Conover said the office has a request that involved 50 hours of body worn camera footage, which translates to 150 hours of labor. She said an attorney had to spend an entire month trying to get through the request.
Another concern over new requirements for access to public records would be what the prosecutors’ office would deem as excessive or frivolous. Conover said that determination would use the reasonable pretense under the Freedom of Information Act to try and help with some of the requests that are “bogging the system down.”
Despite the Board of Supervisors’ denial, Conover said her office will continue to push for its proposal at the Arizona Legislature.
“This is a statewide need of critical importance,” Conover said. “This is important to law enforcement statewide, and it’s really important to the taxpayer. We are spending an absolute fortune when we need to be smarter and more creative.”
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