Politics

A Little Sunshine

After a period of eclipse, anti-secrecy and open-government laws are making a comeback.
by | July 2007
 

In September 2000, in Pine Hill, New Jersey, Robert Taurus was escorted out of a council meeting by the local police chief and issued a summons for disorderly conduct. His offense: He wanted to videotape the proceedings for his records.

Taurus wasn't exactly an impartial observer: A longtime Democratic activist, he had grown disenchanted with the council's Democratic majority over a nepotism dispute, switched his registration to Republican, and become the council's signature critic. He saw his video camera as a deterrent to official misdeeds. "People act differently when they're in front of the camera," Taurus explained. "They're not as apt to do the sleazy stuff."

The mayor told a local newspaper that the council couldn't permit "private people" to film meetings. Then he added, in apparent contradiction, that if Taurus were "a decent resident, we would have no problem."

There's no dispute that Taurus was fond of causing trouble. Still, it was a bit of a stretch to describe what he did as "disorderly." And there wasn't much to disrupt. The main council business that night was a ceremony honoring a local girls' softball team.

Taurus decided to sue the council. In fact, he spent the next seven years arguing his case, all the way to the New Jersey Supreme Court. This past March, he won. The court held that the public's right of access to governmental proceedings includes the right to videotape, though video-tapers may be held to reasonable restrictions. "It was bigger than just me," Taurus says. "I was tired of them having the attitude, 'I am the great and powerful Wizard of Oz. I make the rules, and you don't need to know about what happens behind the curtains.'"

The Taurus case is part of a modest but growing revival of interest around the country in open-government issues and sunshine laws. It reverses a clear trend toward secrecy that prevailed at all levels from 2001 to 2005, stimulated by the actions of the federal government and fueled by concerns about terrorism and identity theft. "We've been getting governors and mayors who think they're running little White Houses," says Charles Davis, director of the Missouri-based Freedom of Information Coalition. They had support from Washington in their efforts. In the wake of 9/11, the federal government created an exemption to the Freedom of Information Act that preempted state sunshine laws. Under the Homeland Security Act, state governments were forbidden to release "critical infrastructure information" in the name of national security.

But while exemptions to state open-meetings and -records laws continue to be proposed by the hundreds, the pendulum has begun to swing back in the direction of access. State-level freedom of information coalitions are proliferating and becoming more influential, especially in states that have relatively weak anti- secrecy laws on the books. The media are providing much of the momentum, but citizen activists, some of them as persistent as Robert Taurus, are beginning to play a more visible role. "There's a general recognition that we've gone too far," Davis contends.

The most significant signs of change are coming from what might seem an unlikely place: governors' offices. Newly elected chief executives Eliot Spitzer of New York and Charlie Crist of Florida both signed sunshine-related executive orders during their first week in office, sending powerful signals about their interest in transparency. Freedom of information advocates in New York and Florida credit both governors with cultivating a "culture of access" in their states. "It has been a sea change," says Barbara Petersen, president of Florida's First Amendment Foundation. Under Jeb Bush, Crist's predecessor, she says, both citizens and reporters were having a hard time getting records. Now, Petersen insists, "the air is different up there; people are just so much more open."

But public access to government proceedings and records remains a complex issue, and in many ways, the Taurus case is emblematic of that. After Taurus was thrown out of the council chamber in Pine Hill, the mayor justified his exclusion on grounds that the recording would be edited manipulatively and then widely distributed. That may or may not have been true, but it raises interesting questions. Does the right to videotape a meeting carry with it a right to edit in whatever way the editor prefers? Should the entire proceeding be fodder for bloggers and webcasters? What recourse might a legislative body have if someone taped speeches with the deliberate intent to distort their meaning? The answers to those questions remain unclear.

WATCHDOGS IN PAJAMAS

Policy makers less than enthralled with open government have long been able to take solace in the difficulty of its practical application. Citizens and journalists have had to show unusual interest in a public record to subject themselves to the lengthy and sometimes costly process required to access it. Weeks or even months can pass, depending on the rigidity of the state's laws, before someone in an agency pulls the proper file from the proper file cabinet and hands it over for review. Occasionally, the records do not materialize and, in some states, a citizen's only recourse has been to sue.

Now, however, technology can make the process relatively painless, even for the citizen who is less than zealous about monitoring public events. Meetings can be videotaped and cataloged on the Internet easily and cheaply, complete with tags for easy navigation. Records requests can be made and filled out online. Google has started offering free help to state and local governments that want to optimize their Web sites for public searching. Arizona, California, Utah and Virginia have already taken up this offer, and others will likely follow. "For years," says Davis, "the information has been 'practically obscure,' to use the legal term. Now, anybody can get to it sitting in their pajamas at 2 a.m., and that alarms some policy makers."

While privacy can be used as an excuse for needless government secrecy, the Google-ability of public records does pose legitimate concerns. An aspiring identity thief is unlikely to file a freedom of information request to obtain personal information that was revealed, perhaps unintentionally, in a government meeting. He is much more likely to scour the Web for it.

This is an especially challenging problem when it comes to court proceedings. State judicial systems have been grappling with whether to make court records available online; some have been redacting information or limiting the types of files available, arguing that information is sometimes discussed at a trial that no one involved in the case would wish to make public. Sunshine advocates think this is overreacting. "If a document is available in a file cabinet, it should be available electronically," says Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press. "The really troubling development is that some states are saying, 'Well then, we're not going to make it available in the file cabinet anymore.'"

The new administrations in New York and Florida are taking the view that transparency is worth the risk, even with the complications created by emerging technology. They argue that transparency makes for more efficient use of government resources.

In New York, Spitzer's inaugural executive order requires state agencies to webcast all proceedings that are covered by the state's open-meetings laws. This builds on a measure enacted last year, near the end of the preceding Pataki administration, that allows citizens to request and receive records by e-mail. State agencies are required to release records electronically whenever possible, so that those making the request do not have to pay a 25 cents-per-page fee for photocopies.

In Florida, Crist has created an Office of Open Government, which reports directly to him. The office fields questions about open- meetings and -records laws from agencies and citizens, and fills executive office records requests. In April, the average turnaround time for citizen requests was one day. The office also has a centralized list of key contacts for public-records issues in every state agency, with their e-mail addresses and phone numbers available to citizens on the state Web site.

California has moved in what seem to be conflicting directions on the sunshine issue. In 2006, Governor Arnold Schwarzenegger signed an executive order requiring agencies to designate particular staff members to handle record requests and train them in how to do it. Last fall, however, Schwarzenegger vetoed a bill that would have required all state agencies to develop online forms to handle the requests. Sunshine advocates, citing the governor's frequent calls for transparency, called this a betrayal.

In many states, failure to move further in the direction of open government has less to do with outright resistance than with anachronistic laws that make no provision for the digital age. Most state open-meeting and -records laws were enacted in the 1950s and '60s, and offer no guidance at all on how agency officials should respond to the Internet. "The laws were created in a paper-based world with metal file cabinets," Davis says, "before word processors were part of the equation, let alone teleconferencing." Any law that is more than five years old, Davis points out, is unlikely to say anything about technology.

In the absence of modern statutory guidance, technology has actually been a hindrance to freedom of information advocates as often as it has been a help. "When computers first began to be widely used in government, there was a big jolt backwards," says Bill Chamberlin, director of the Citizen Access Project at the University of Florida. When public records were first digitzed in the 1970s and '80s, many records custodians took the position that a database isn't technically a record and thus isn't subject to open- records laws. Such arguments are almost never heard anymore, but a reminder of them still exists in the hefty fees some states continue to charge for the retrieval of digital records.

NEW EVASIONS

And while 21st-century technology keeps creating new opportunities for transparent government, it creates new possibilities for evasion as well. E-mail and teleconferencing can be used as a way to meet without technically "meeting." Some states have been updating their laws to close these loopholes, but the tempo of technological advances makes it difficult to keep up. Eight states require that e-mails be subject to their open-records laws, and four prohibit the use of e- mails as meetings.

Tightening the laws to close technological loopholes sometimes requires nanolegislating. In Massachusetts and Florida, members of a public board may send other members a private electronic meeting agenda but may not invite comment or include personal notes about policy matters. Teleconferences are prohibited in Nevada, although statewide bodies are allowed to hold videoconferences if at least one member is present in front of the public.

No doubt the next few years will produce other examples. Can a text- message exchange be considered a meeting? In all likelihood, a court somewhere will eventually have to rule on that question. "Unless the state legislature has been extremely farsighted," says Jane Kirtley, a media ethics professor at the University of Minnesota, "it's inevitable that technology will continue to provide new ways to dodge." Still, she believes, the current move toward greater openness is going to expand in the years ahead, not contract. "Government officials and government employees," she advises, "should be starting from the presumption that everything that they do is public information."

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