Shortly after the American Legislative Exchange Council (ALEC) told the press "we really believe in transparency," new documents show the organization directing legislators to hide ALEC meeting agendas and model legislation from the public. This effort to circumvent state freedom of information laws is being called "shocking" and "disturbing" by transparency advocates.
A disclaimer published at the bottom of meeting agendas and model bills from ALEC's most recent meeting in Oklahoma City, obtained by the Center for Media and Democracy, reads: "Because this is an internal ALEC document, ALEC believes it is not subject to disclosure under any state Freedom of Information or Public Records Act."
"If you receive a request for disclosure of this or any other ALEC document under your state's Freedom of Information or Public Records Act, please contact Michael Bowman, Senior Director, Policy and Strategic Initiatives," it says.
For a private organization to assert that its interactions with state legislators are not subject to public records laws is "shocking," says Mark Caramanica, Freedom of Information Director at the Reporters Committee for Freedom of the Press.
"Private individuals or organizations cannot simply label a document private and say it is private on their own. It is not their decision to make."
Legislators attend ALEC meetings in their official capacity, and ALEC has claimed that they do so "on behalf of and for the benefit of the state."
Under almost every state's public records law, all documents related to official business are considered public unless there is a specific exemption, defined and passed by the legislature, and embodied in the statutes.
"ALEC cannot create exemptions of [its] own imagination," Caramanica told the Center for Media and Democracy.
The disclaimer is "disturbing," says Christa Westerberg, Wisconsin Freedom of Information Council Vice President, particularly because it "suggests legislators will contact ALEC first when they get a request for records and may be advised by ALEC on what to do."
"Courts and other entities with authority to interpret state sunshine laws, and not ALEC, should determine whether ALEC documents are subject to disclosure under any state's public records law," she told CMD.
ALEC boasts that over 1,000 of its model bills are introduced each year and at least 1 in 5 become law. But despite its significant influence over state law and policy, ALEC conferences are closed to the press and public, and the only way Americans have had any notion of what happens in those meetings is through public records requests for the agendas and model bills.
Even before the "disclaimer" was discovered ALEC and its member legislators had been taking pains to avoid public records requests.
Last year, CMD prevailed in a lawsuit against Wisconsin legislators who had tried evading the public records law by shifting their ALEC correspondence to a personal email account (like Gmail or Yahoo), which they erroneously asserted meant the emails were not subject to public records requests. And ALEC has begun sending legislators advance agendas and model bills via a link, which expires within 72 hours, to an Internet drop box where they can access the relevant documents; in many cases, when legislators respond to a request for ALEC records, they only release a scanned copy of the email invitation, rather than the contents of the folder available via the link. It is not known whether legislators refused to release these documents because ALEC asserted its immunity from public records law.
In March, ALEC published some of its model bills online in a move the organization claimed showed its commitment to transparency. "We really believe in transparency," alleged ALEC spokesperson Bill Meierling. But its public records "disclaimer" and other actions indicate the organization is far more interested in maintaining secrecy.
"This certainly raises the question," asks Caramanica, "what are their motives for trying to keep their documents secret?"
ALEC legislators cannot have it both ways. They cannot use public money to attend ALEC meetings -- as the Republican-led South Dakota legislature recently approved -- or claim that accepting corporate-funded flights and hotel rooms for ALEC travel are part of their legitimate work responsibilities, then conspire with ALEC to hide documents and information from their constituents that should be accessible under freedom of information laws.
Note: Mark Caramanica wrote after publication to emphasize that communications between legislators and third parties can in some cases be private, such as in states where the legislature is exempt from the public records law or in cases where communications fall under a statutory exemption. The part that is "shocking" is ALEC's blanket assertion that its communications can never be covered under a state's public records law.