Sunshine Week 2023: Three Major Threats to Government Transparency — and Three Big Wins

American Oversight uses public records requests to extract information from government officials to drive accountability and defend democracy. Open government is a crucial pillar of democracy, and public records laws help ensure that people are informed about the decisions that impact their lives.

In the past year, we’ve seen numerous threats to transparency that endanger the public’s right to know about the actions of government officials, from state lawmakers rewriting rules to hide their communications to public officials’ use of auto-deleting messaging apps. 

At the same time, American Oversight has been a part of major victories in promoting government transparency and accountability, including better records retention policies in the federal government and court wins that make it easier for the public to access records.  

The Biggest Threats to Government Transparency in 2023

1. State Legislatures Exempting Themselves from Open Records Laws

A concerning pattern is emerging in state legislatures: Lawmakers are taking steps to exempt themselves from public records laws and shield themselves from public scrutiny. In January, the Arizona Legislature implemented rule changes that call for the deletion of correspondence sent or received by lawmakers and staff after 90 days unless someone makes an active decision to retain a given email, letter, or text message. The Arizona Senate took the additional step of declaring that any message sent or received on the private device of any legislator, staff member, intern, or contractor “is not subject to public inspection,” with no stated exception for messages about official government business.

It’s not hard to see how these changes would allow unscrupulous officials to hide their activities from public view. Had these rules existed in 2021, the public would not have learned the whole truth about the Arizona Senate’s partisan and conspiracy theory-fueled “audit” of Maricopa County’s 2020 election results. American Oversight used public records requests and litigation to investigate the “audit” and extract thousands of pages of emails and text messages revealing leaders’ communications with conspiracy theorists and documenting the inquiry’s roots in the broader plot by allies of former President Donald Trump to overturn the election.

Missouri has threatened to follow suit. A bill advancing in the Missouri Senate would rewrite the state’s Sunshine Law to severely limit what kind of information members of the public can obtain regarding the activities of legislators — allowing lawmakers to block the release of a wide range of previously available records. One provision would permit lawmakers and their staffs to withhold many records that pertain to “legislation or the legislative process,” and another change would revise the definition of a “public meeting” in a way that would allow many government bodies to close their doors to ordinary citizens or the press.

2. Top Elected Leaders Evading Accountability

Senior elected leaders in multiple states have made great efforts to obscure a wide range of governmental activities. 

In February, a Tallahassee judge ruled that Florida Gov. Ron DeSantis had “executive privilege” — something not mentioned in state law or the constitution — that shields him from being required to release records. The decision is being appealed.

In Virginia, Gov. Glenn Youngkin’s administration has delayed public records responses by weeks and leaned heavily on broad exemptions to shield public records related to the state’s attacks on education from release. American Oversight sued Youngkin to challenge this tactic. 

Leaders in Texas, including Gov. Greg Abbott and Attorney General Ken Paxton, have also concealed public records, including records related to Paxton’s activities in the days surrounding the Jan. 6 attack on the Capitol and communications with the gun lobby following the elementary school shooting in Uvalde. In June 2022, we sued to uncover those records and to better understand the reasons for the implausible responses we received from their offices.

3. Tactics for Dodging Public Documents Retention Rules

The use of ephemeral messaging apps and personal accounts and devices to conduct official government business is one dangerous way that public officials have been evading retention rules. For example, the office of former Maryland Gov. Larry Hogan reportedly conducted official business using Wickr, a messaging app that can be set to delete messages after a set period of time. In August, we asked Maryland’s attorney general to take action to prevent records of state officials’ communications from being destroyed by auto-deleting messaging apps.

Public officials also evade accountability when they use personal devices or personal accounts to exchange work-related messages. American Oversight has sent multiple public records requests to Texas Gov. Abbott’s office for work-related emails and messages sent to or from his personal accounts, and our lawsuit against Abbott and Paxton seeks records related to official business that were sent or received on personal devices. 

Victories for Government Transparency in the Past Year 

1. Improving Federal Records Retention Policies

American Oversight discovered through litigation that the Department of Defense and the Army had wiped the phones of top officials at the end of the Trump administration — including text messages from the attack on the Capitol on Jan. 6, 2021. Those revelations emerged in August shortly after the Secret Service came under fire for also having deleted text messages from Jan. 6. Within days of American Oversight’s call for an investigation, the Pentagon publicly announced a new policy regarding the preservation of text messages and other information stored on mobile devices. The Department of Homeland Security also announced it would stop wiping the phones of high-level officials without backing them up, and would launch a review of its record retainment practices.

In another lawsuit, brought by American Oversight and the American Civil Liberties Union of Massachusetts, Immigration and Customs Enforcement (ICE) admitted to having instructed senior Trump officials to wipe their phones upon departure. In September, a judge ordered the agency to preserve the mobile devices of seven former officials. 

2. Better Training for CDC FOIA Staff

American Oversight reached a settlement with the Centers for Disease Control and Prevention (CDC) in a lawsuit over the agency’s illegal practice of rejecting valid Freedom of Information Act (FOIA) requests. The settlement agreement requires the agency to provide better guidance to its FOIA staff through an instructional email regarding the improper rejection of requests as “overly broad” — a claim the agency used to deny several of American Oversight’s requests related to the pandemic in 2020. 

American Oversight provided significant input on the content of the new CDC FOIA instructions, which direct staff to find requests overly broad “only when appropriate.” Importantly, staff handling FOIA processing should focus primarily on whether a request “reasonably describes” the records sought rather than on the volume of records retrieved by a search.

3. More Legal Wins Protecting the Public’s Right to Know

Last year, Citizens for Responsibility and Ethics in Washington (CREW) sued the Bureau of Prisons for records related to the procurement of drugs used for execution by lethal injection. We submitted an amicus brief in support of CREW. In February, the D.C. Circuit Court ruled in CREW’s favor, writing in its decision that the bureau had not justified its use of FOIA Exemption 4 to withhold information in the documents — including identities of contractors — as “commercial” and “confidential” information. The ruling prevented an overly broad interpretation of FOIA exemptions from being applied to records that shed light on government dealings with the private sector.

In a separate case, ICE withheld A-numbers, or personal identification numbers assigned by the agency to noncitizens, from immigration data, citing privacy reasons. However, the agency refused to release public records in which those A-numbers were substituted with other unique identifiers that would make the data interpretable while still protecting individuals’ privacy. The American Civil Liberties Union sued, and in January, an appeals court ruled that ICE’s refusal violated FOIA’s broad disclosure policy. American Oversight joined in an amicus brief filed by the American Immigration Council in 2021 in support of ACLU’s arguments. The ACLU’s win will enhance transparency by making it easier for requesters to access and interpret public records.