Thread by @weareoversight

This Sunshine Week, we’re highlighting serious threats to public accountability as well as major victories in government transparency.

Here are three major threats to transparency — and three big wins from the last year. #FoiaFriday
americanoversight.org/sunshine-week-…

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.
americanoversight.org/american-overs…

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.

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.
americanoversight.org/arizonas-sham-…

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.
americanoversight.org/the-show-me-no…

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.
tampabay.com/news/florida-p…

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. We’ve sued Youngkin to challenge this tactic.
americanoversight.org/document/compl…

Texas Gov. Abbott and Attorney General Paxton have also concealed public records, including records related to Paxton’s activities in the days surrounding the Jan. 6 attack and communications with the gun lobby following the shooting in Uvalde.
americanoversight.org/investigation/…

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.
americanoversight.org/investigation/…

But there have also been important victories for government transparency in the past year, including improving federal records retention policies.

We 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.
americanoversight.org/defense-depart…

Those revelations emerged shortly after the Secret Service came under fire for also having deleted texts from Jan. 6. Within days of our call for an investigation, the Pentagon announced a new policy regarding the preservation of texts and other info 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.
cnn.com/2022/08/04/pol…

In another lawsuit, brought by us & the ACLU of Massachusetts, 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.
americanoversight.org/judge-orders-i…

2. Better training for CDC FOIA staff.

We reached a settlement with the CDC in a lawsuit over the agency’s illegal practice of rejecting valid Freedom of Information Act requests.
americanoversight.org/public-records…

The settlement agreement requires the CDC 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 our requests related to the pandemic in 2020.

3. More legal wins protecting the public’s right to know.

Last year, @CREWcrew 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 as “commercial” & “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 was withholding A-numbers from immigration data for privacy reasons, but refusing to substitute them with unique identifiers that would make the data interpretable. The @ACLU sued.

In 2021, we joined in an amicus brief filed by the American Immigration Council in support of ACLU’s arguments.

This year, an appeals court ruled that ICE’s refusal violated #FOIA’s broad disclosure policy.
immigrationimpact.com/2023/01/31/dat…

The ACLU’s win will make it easier for requesters to access and interpret public records.

Learn more about ongoing issues with government transparency here:
americanoversight.org/sunshine-week-…