Lawmakers are mulling changes to public records rules. But will they reconsider exempting themselves?

The issue was simply a matter of accountability, former Wyoming Secretary of State Karl Allred told lawmakers Thursday. 

The Joint Corporations, Elections and Political Subdivisions Committee had been discussing several changes to the Wyoming Public Records Act, including a bill to make elected officials’ associations subject to the law, which governs the release of government documents like emails and reports.  

“I do believe as long as they’re getting taxpayer funds in any way, shape or form, they should be subject to public records requests,” Allred said. “You guys are.” 

“Actually, just to correct something,” committee co-chairman Sen. Cale Case, R-Lander, responded. “We’re not subject to the public records requests.”

In 2006, legislators voted to exempt themselves from the Wyoming Public Records Act, arguing it was needed to give them the freedom to conduct their business. The law makes emails and other communications between legislators, legislative staff and constituents confidential unless the privilege is waived by the lawmaker. Other government entities, from the governor to government employees, are subject to the law, and generally must turn over their correspondence if requested.

At the Thursday meeting in Casper, lawmakers mulled other revisions to the act including tightened deadlines, steeper fines for violations and uniform fees for local government entities. 

“The revisions to the Wyoming Public Records Act that you all have presented here, I think are constructive and improve the act, but I don’t think they go far enough,” Cheyenne resident and WyoFile columnist Rod Miller told the committee. 

“I also add that the Legislature opens itself up to valid criticism of hypocrisy if it exempts itself from the Wyoming Public Records Act,” Miller said.  

Ultimately, the committee chose not to sponsor either of the bills that were up for consideration, opting instead to carry the discussion to the next meeting and to form a working group after hearing concerns from local government officials and the state’s public records ombudsman that many of the proposed revisions would be counterproductive. 

It remains to be seen what appetite, if any, lawmakers have to repeal the exemption they gave themselves nearly 20 years ago. 

The Wyoming Freedom Caucus, which now leads the House, has not taken a public stance on the matter, and the group’s chair, Cody Republican Rep. Rachel Rodriguez-Williams, did not respond to multiple inquiries by WyoFile. 

Ahead of Thursday’s meeting, Gov. Mark Gordon weighed in. 

“I think transparent government is essential — what’s good for the goose is good for the gander,” Gordon told WyoFile. “I firmly believe that the Legislature has a responsibility to hold themselves as accountable to the public as they would hold the rest of government. This is especially important in a season of elections.” 

How we got here

When the Wyoming Legislature passed Senate File 5, “Privileged communications,” in 2006, the law made all legislative communications — such as emails, between legislators, legislative staff and constituents — confidential unless the privilege is waived by the lawmaker. 

Then-Democratic Gov. Dave Freudenthal opposed the bill, writing in his veto letter that it “can be read as significantly protecting legislators from accountability” and that “such a privilege would protect far more than essential legislative functions.”

Freudenthal also pointed to other governmental entities that lawmakers choose not to exempt. 

“The laws adopted by this body in the past to govern the executive branch and local governments have reflected the presumption of open government with a burden resting on any elected official seeking secrecy,” Freudenthal wrote. “While as governor I have not always liked the result, as a citizen I believe it is correct.” 

Lawmakers overrode his veto. 

Case told WyoFile ahead of the meeting he’s open to reconsidering the exemption, but there’s also good reason for emails to have some degree of privacy. Constituents regularly share personal details in emails to lawmakers, Case said. 

“The reason the Legislature did it was because they know firsthand that you might get something from a woman worried about her husband, for example, and the kids in school,” Case said.

Gillette Republican Rep. Chris Knapp co-chairs the committee with Case and is also vice chair of the Freedom Caucus. 

County commissioners, for example, taking action or voting over email “is very different from private emails back and forth between legislators dealing with any issue,” Knapp said. 

“[Lawmakers] have the right and ability to communicate and have that be private, no different than a phone conversation or anything else,” Knapp said. “I think, when it comes to taking action or building consensus, those things are covered under that act. And so I wouldn’t open it up to further legislation that gets rid of the exemption for lawmakers to be able to just converse.” 

Revisions

Complaints about fees and timeliness led the committee to prioritize the study of public records rules in the off-season, also known as the interim when lawmakers meet in the months between sessions to delve more deeply into legislation. 

The complaints related to the effectiveness of the state’s public records ombudsman program, the costs government entities impose on records requesters and the “ignorance and disregard of public records and public meetings statutes by public officials,” according to a letter the committee sent to the Legislature’s Management Council in March. 

In May, the committee requested two draft bills — one to generally revise the Public Records Act, another to subject elected officials’ associations to the law. Such associations represent the state’s school boards, municipalities and county commissions, among other things.

Both bills were up for lawmaker consideration Thursday. 

Among those who urged the committee to reform the law was Darlena Potter, Wyoming’s public records ombudsman. Since 2019, it’s been her job to educate public officials about what’s required of them under the law and to help resolve issues regarding records requests of state and local government agencies. 

Thursday, however, Potter asked the committee to pump the brakes on the draft legislation. More specifically, she was concerned about the legislation significantly increasing workloads for all entities while doing very little to benefit the records requester. 

“When I got to thinking about some of this and how it would actually work with the public as well as with the local entities, I wanted to be very fair and cognizant that as a civil servant, I want to provide them as much as I can, and I know most of my colleagues do as well,” Potter said. And “as a member of the public, ‘What do I expect when I go in and ask for things as well?’ So I try to balance it between those two roles.”

The draft revisions bill would have shortened the current 30-day deadline for agencies to provide records to 10 days. 

“If you can complete it all in 10 days, that’s what you should do. You shouldn’t be holding on to those requests to the 30-day mark,” Potter said.

But there will be times when the full 30 days are needed, Potter said, as in cases with small municipalities with very limited staff, or during peak periods, such as elections. For the same reasons, Potter opposed the legislation’s proposed three-day deadline for a public entity to acknowledge a request. 

“It is not a matter of unwillingness, but rather a capacity issue,” Potter also explained in a letter to the committee. 

As such, Potter said the question came down to this — “do we prioritize thorough, accurate, and responsible information, or quick delivery? I believe the public desires both, which necessitates sufficient time and due diligence.”

When lawmakers created Potter’s job in 2019, the law did not authorize the ombudsman to enforce Wyoming’s public records laws. And as a result, government entities don’t always comply, and disputes often land in court. That expense could prove difficult to impossible for those seeking public records.

To address that, the draft bill proposed having the ombudsman refer cases to the attorney general or district attorney, who could then go to the court to enforce compliance. 

But requiring those attorneys to review each case and decide whether to take action, Potter said, would likely yield a similar outcome and may even slow down the process since it would add an additional layer for requesters to navigate. 

Pinedale Mayor Matt Murdock, Mills Mayor Leah Juarez, Riverton City Administrator Kyle Butterfield and Laramie City Manager Janine Jordan also expressed concerns to the committee. 

“A town with one clerk or treasurer and a 10-day clock is not reform. It’s actually a failure point,” said Murdock, who also serves as president of the Wyoming Association of Municipalities. 

Bob Bonnar, owner and publisher of the Newcastle News Letter Journal, spoke in favor of the bill, echoing comments he made at the committee’s May meeting. 

“I do want to sincerely thank the local governments that are doing it right,” Bonnar said. “I honestly wish we had some of these folks in Weston County, or in some cases, from what I’ve heard from citizens and newspapers in their communities, I wish they were on other boards in their communities … Unfortunately, there are still way too many bad actors out there.”

Bonnar urged the committee to stick with the bill, but also asked that lawmakers take it a step further and repeal the law’s current language that stipulates only those who “knowingly or intentionally violate” it are liable for penalty. 

“This law has been ignored, and putting teeth into this law to truly get compliance from governments means pulling that ‘knowingly and intentionally’ language out of the violation part of it, because, again, we don’t get a claim when we get pulled over for speeding that we didn’t see the sign,” Bonnar said. “And I think it’s a bad example to set to allow the state’s leaders, the leaders of these communities, to plead ignorance to a law that, for all intents and purposes, has been on the books in this fashion since 2012.”

Ultimately, the committee chose to table the bill while a working group finesses it. Potter will lead the group, which will be made up of Case, Rep. Ann Lucas, R-Cheyenne, and Paul Hoeft, R-Powell. 

Associations applicability

Elected officials’ associations rely in part, though not entirely, on dues from their members. Cities and towns, for example, pay their dues to the Wyoming Association of Municipalities with tax dollars. 

As such, some argue that means those organizations should be subject to public records laws, including Rep. Marlene Brady, R-Green River. 

“These associations are invisible and unaccountable to the public,” said Brady, who is also leading the charge on legislation to halt tax dollars from going to the associations altogether. 

WyoFile followed up with Brady to ask if she also thought lawmakers should be subject to public records laws. She responded that she would address the question at a later date. 

Mark Koep of Sundance spoke in favor of both efforts. 

“We need to rein this thing in. They are operating outside of the legal channels,” Koep told the committee. 

Sen. Cheri Steinmetz, R-Lingle, asked Koep if he’d tried bringing his concerns to his local officials. 

“I’m just hesitant to step over those lines when you could go to your local county commissioners at their budget meeting and say, ‘I don’t want you paying these associations dues, and here is why,’ and take care of this at the local level, without the Legislature stepping in,” she said.

Koep said he had, but still wanted lawmakers to take action. 

Speaking on behalf of WAM, Pinedale Mayor Matt Murdock pushed against the bill. Murdock noted that the organization also has members from the private sector alongside municipalities. 

“Under long standing U.S. Supreme Court precedent, private associations have strong First Amendment protections,” Murdock said. “We do feel that … there is very strong and a high potential [for] litigation that could follow from this bill.”

At Knapp’s suggestion, the committee chose to forgo legislation and take another route. 

In the Management Audit Committee’s work, Knapp said, “we see that small cities and towns really do rely on these organizations. So if they were treated more as a vendor, then they were an association with dues, I think that would help.”

That way, Knapp said, the public could more easily see how taxpayer dollars are spent. The committee plans to develop that approach at its next meeting in November.