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Strong public records policies can prove that the fix isn't in

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What the Devil won't tell you

Strong public records policies can prove that the fix isn't in

Sentinel accused of 'cronyism' because of recognition by public officials we repeatedly hold to account

  • Pima County Board of Supervisors Chairman Richard Elias proclaims Wednesday as ' Day,' to recognize the 10th birthday of the local independent nonprofit news outlet.
    Randy Metcalf/Pima County Pima County Board of Supervisors Chairman Richard Elias proclaims Wednesday as ' Day,' to recognize the 10th birthday of the local independent nonprofit news outlet.

When I was in elementary school my mom tried to give me a "half birthday" party, because as a Cancer-Leo-cusp kid, I never got the day in class where it was my day to wear the construction paper crown.

So she packed up the Chevrolet station wagon and drove up to Brooks Hill elementary school with 30 cupcakes, on each of which she drew a “6 ½.”

That day was January 21.

Now, by the grace of the Pima County Board of Supervisors on another January 21, we're observing Day on this January 22, because that's the date this news organization started full-time publishing 10 years ago.

So mark your calendar and send your crab leg and Budweiser to the home office.

It was cool, kinda, to have a government not trash us and not call us fake and not try to turn a cynical public against us. We got a proclamation and some handshakes and a picture and then we turned on them.

Sentinel Editor and Publisher Dylan Smith got up at call to the audience to point out that three and a half years ago, the board promised to revise its public records policy. Nothing has happened since.

Well, one thing happened. The county saw a slate of bonds flushed by voters by big margins.

See, on the one hand, it’s nice to have the powers that be tout the persistence of our existence. On the other hand, the fundamentalist in me says … “I don’t know about this …” It’s the same way I made a “what smells” face when I heard about Joe Ferguson – a hard-hitting reporter for the Arizona Daily Star – receiving a board appointment as a constable.

“… I don’t know about this …”

One person in the audience raised the point that if you put the two together, it seems a bit like we are in cahoots with each other.

“As long as you don’t report on the crony deals going on at Pima County, you will be rewarded by the Pima County Board of Supervisors.”

Believe me. We’re not. But that’s just it. How do you know there’s nothing shady going on with the county? Make sure the public records law is followed so the county business is done right there for the community to see.

Supervisor Ally Miller wasn’t happy about this news outfit getting our day and we know that because her audience wingwoman at board meetings, Geri Ottabani, got up to read meandering prepared remarks about our being “fake news” and insinuate a conspiracy between the press and the powers that be.

Right after, just moments after standing at the dias with Board Chairman Richard Elias to shake hands and have Day proclaimed, Sentinel Editor and Publisher Dylan Smith faced the supes on the same dias and demanded movement on a new open records policy. He also ran down just a few of the recent stories we've published that have called the county to account and made them operate in a more open manner, reminding the supes that they had a day remaining to rescind their proclamation.

Tuesday marked the third or fourth time that Smith has spoken about fixing Pima County's records policies at a Board of Supervisors' meeting over the past four years.

“Conducting the business of the public in public in a transparent manner is vital – not just so reporters can do their jobs but so all citizens can have a better grasp of what it the government is doing on their behalf,” he told the supervisors, pushing them to adopt fixes to county policies that would make records more accessible and affordable to residents, and provide assurances that things aren't being swept under the rug.

Those changes — first proposed in 2016 in the wake of one of Miller's staffers setting up a truly sham "Arizona Daily Herald" news website, posting to it while on the taxpayers' dime, lying about it, the supervisor and him submitting unfounded FBI reports blaming an innocent person, and Miller stonewalling over releasing public records about Heraldgate, leading to internal allegations that she purposefully encrypted documents in order to conceal them — would mean most records would be released in electronic format, without charge, and reviews of material to be blacked out wouldn't be conducted by a person with self-interest.

Smith’s a bit conceptual in my humble opinion. I'll try to put in more concrete terms why this is such a big deal.

Any person's right

The records belong to the public, period. Stonewalling the press isn’t playing some game against the liberal or just-plain media. It’s deciding the public A) doesn’t really own the records and B) will find out what government is up to when the powers that be decide they should learn it.

People can confuse the public records law with a “reporter compliance law.” That’s not it at all.

Arizona's law is this:

"Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours."

By "any person," it says.

The press makes the most use of it, sure. It’s our job to drag into the light as much of the government’s inner workings as is possible. But the same law applies to you, Dear Reader, as well.

The law itself is very clear that vast majority of government documents in Arizona are public. It’s vague about how those records are to be disclosed. Governments can and do slow-walk compliance, which forces whomever is seeking the record to go to court.

If they can’t afford to do that, well then practically speaking there is really no public records law.

It’s about the public’s right to know and it is not at all abstract. Sure, it’s required for a free people, but public ownership of public records is vital to a free market.

We operate under the notion that some rules and regulations are necessary and that those rules belong to the people as manifest by the state. It best belongs to the public to be sure that the laws are equally and neutrally enforced.

Neutral application of the law is a must-have for the free market because it keeps the state from tipping the scales of coercion toward one competitor versus another. The San Francisco 49ers must know that when they take the Sunday after next that the referees aren’t Kansas City Chiefs season ticketholders from the days of Bill Kenney and Carlos Carson.

Cronyism repellent

Remember when the City of Tucson zoning inspector quit, saying that the City Council was futzing with his decisions? Linus Kafka served as the city equivalent to a one-man planning and zoning commission. He’d make a recommendation and the Council would decide if a property got the right designation for whatever use a landowner wanted.

His gripe was that he would make a recommendation and then the Council would allow the occasional landowner to make a tweak here or a change there to the plan and then it would be approved.

That was a problem because it was “the occasional” owner. Some got a break and others didn’t.

The zoning process therefore had become politicized and it left the Council open to complaints about sweetheart deals and "corrupt" bargains.

If I’m a landowner, how do I know my zoning application is getting the same treatment as a Regina Romero donor or a family friend of Paul Durham? Well, I could demand to see all communications between the donor and mayor or the friend and the councilman.

A public with fulsome access to public records is a crony repellent.

Backside concealment

Saying "no" isn’t always an act of an intentional cover-up.

A couple instances come to mind.

Way back when, the Associated Press did an audit of all local governments and their compliance with the Arizona Public Records Law. So, I got assigned Flowing Wells Unified School District.

I took a member of the public along, a Richardson Elementary School mom went with me to the district’s administrative offices. We asked for a specific stack of documents and executive assistant did what she was supposed to do and said “come back tomorrow and we’ll have them for you. We just don’t have them here at this office.”

Next day? Cool. Fine. We’ll take it.

So we showed up and they had what we needed. Just as she was handing it to us, she asked “what are you guys up to?” It was done in an off-hand manner. Just making conversation. That’s when I pointed out to her: “I don’t have to tell you.”

She stiffened. Her head titled. She pulled the stack of documents back and said “Uuuhh, I need to talk to my boss first.”

It really wasn’t her fault. She thought we might be up to something and was suddenly protecting her own ass. No one had told her why someone wants public records is irrelevant to the fact that the information is public in the first place. That’s not an issue of law. That’s an issue of policy and leadership.

There's a move in the Legislature right now, led by Sen. Vince Leach, R-Saddlebrooke, to withhold records from people unless they furnish their name, address, phone number and email address — a bill that, if it becomes law, would cause some citizens to forgo requesting records because of fears of retaliation.

In another instance, the clerk working the court records section told me on a Wednesday before Thanksgiving that there was no public records law on that day. See, her boss was the only one who could turn over information and he had the day off.

This was a very straightforward request for a search warrant return.

Again, “I’ve gone over the river and through the woods,” is not a legal carve-out to Arizona Revised Statute 39-171.

Finally, I once had a checkbook stolen out of my car and someone went hog-wild on my account. The bank wanted a copy of the police report. Yet Tucson police would not give me a copy of my own report. The bank wan't asking for all records, interviews and crime lab results involved in the investigation (like there was one). I just wanted the form that said “my checks were stolen.”

Nope. It was “under investigation,” therefore the little sheet of paper I needed was not “public.”

In this instance, you get to the other nub of the problem. People in power like control and nothing says control like controlling information. That’s a great way to take power away from the people, who are the owners of said information.

For his part — and why I like the guy — Huckelberry shrugged at the end of the meeting. “I just forgot about it.” He made the point that we should just call him if we run into problems. That's not the point, I told Chuck after the meeting.

The point is that we shouldn't have to call you because the clerks and cops and planners and everyone else involved in the public business should be versed in the meaning of public records. That way requests for sunlight are treated with a uniform and institutionalized deference to the public's right to know.

"The playing field should be the same for everybody," Smith told some of the supervisors after the meeting.

Pima County can establish a policy that all public records requests will be honored immediately or at the very least at a brisk pace so Chuck doesn't have to pick up the phone. There are no meetings to be had. There is no review to be done. The law grants that the public records enforcement can't disrupt the regular function of government anyway. Otherwise, the information is ours – the public’s. Show it to us, so we know what you are up to.

And, importantly: streamline the handling. Don't waste time and money printing out documents and then attempting to charge requestors for copies. Just email along documents that are almost always already in electronic form. And do it for free — it's got to cost more to process a $3.50 transaction than is gained, considering government overhead. Charging for most records is a money-losing proposition.

It's not like America's major institutions like government and the press are suffering under an overabundance of public trust.

So government at every level would have a great retort any time they accused of any accusation of cronyism or corruption: "We're an open book."

A strong policy means the Board of Supervisors can give an "attaboy" to a local nonprofit, online news site and it's just an attaboy. We know there’s no cronyism going on because the public’s business is a completely open book.

Blake Morlock is an award-winning columnist who worked in daily journalism for 20 years and also worked in Democratic political communications. Now he’s telling you things that the Devil won’t.

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