Government Transparency - How Much 'Sunshine' Do We Need?
As we return to work and recall the sunshine-filled weekend lying by the pool, skiing on the lake, playing in the sand or barbecuing on the patio, we should take a moment to reflect on our governments and our freedoms. In particular, what do we have a right to know about the governments we empower? How much information and access do we need or want? Is there such a thing as too much "sunshine," too much transparency in our local state or national governments?
Some History on Open Records
One of the earliest examples of an open government law is the Florida Public Records Law passed in 1909, which granted citizens access to any record produced by the government that the legislature did not specifically exempt. In 1967, Florida passed a "Sunshine Law" granting access to the public to many government meetings. (myflorida.com) It is worth noting that, like most states, Florida, a "pioneer" in government transparency, has over 600 exemptions it's open records law.
Congress passed the Freedom on Information Act (FOIA) in 1966 granting citizens access to certain government records and making the federal courts the final arbiter in disputes over those records. Anyone who has made an official FOIA request knows the process is arduous, bureaucratic and untimely. Since 1966, numerous acts have been passed by Congress. Some restricting access to records and others opening previously closed records. In 2007, President Bush signed the first update in nearly a decade to the Freedom of Information Act under pressure from Congress about the Administration's secrecy since 9/11. (USA Today, 12/31/2007) President Obama promising greater transparency signed a law in 2014 requiring all government agencies to publish spending data in a machine-readable format for easier access by the public, though overall his administration has been criticized by open advocates for keeping much of the secrecy from the Bush Administration in place. (Information Week, 5/12/2014)
In the wake of Vietnam and Watergate, a wave of new open government or "Sunshine" laws was passed by state legislatures. Most of these new laws did give the public and the media greater access to official meetings and records, but served as little more than a nuisance to lawmakers who wanted to side-step the rules and conduct business in secret or prevent access to certain government records. Most open government laws are lacking in substantial penalties for violators, allow for hundreds of exemptions, charge the public fees to get the records their tax dollars paid for and come in a variety of formats making it difficult to decipher. Generally, these laws apply to local governments, unless the local government decides to make the government more accessible to the citizens and adopt policies allowing for greater transparency.
While there is a healthy debate to be had and fair points on all sides to be made regarding information and meetings at the Federal level, especially those purported to impact national security, the remainder of this post will be dedicated to local and state governments. Arguably state and local governments have far less need for secrecy, but media outlets and private citizens continue to struggle for information they desire.
Local Government Transparency
How would you rank your LOCAL government's transparency?
Memphis as an Example
Memphis, Tennessee as an example of open records and open meetings failing to meet expectations is not all that different than most American cities. Governments, in spite of well-meaning candidates, who promise transparency often forget who they serve and who pays the bills. In 2009, I was asked to co-chair the transition team for newly-elected mayor, A C Wharton. Once the team was organized, our first move was to make a bold declaration about transparency, which had not been a hallmark of the previous administration. I drafted an Executive Order signed by the mayor in which it was promised that city government would list all contracts online and all employee salaries by name and position including benefits. Open records requests would be answered within 5 days and any illegal or unethical conduct of an employee would be made public in a timely manner. The move was lauded as long overdue and a sign that things were changing at City Hall. (wmcactionnews5.com)
Six years later, Mayor Wharton contacted me and asked me as the author of the original executive order to conduct a review of the City's open records processes and recommend changes that would comply with both the law and the spirit of his original order. A link to the report is included in this post.
In 30 days, I interviewed 28 people from inside and outside City Hall, including public records staff, the Chief Information Officer, the Police Director, local print and broadcast media representatives and advocacy groups. I found numerous systemic failures, engrained mistrust and while many of the promised documents were available online the "duck and dodge" culture pervasive in the previous administration was alive and well. So what happened between 2009 and 2015?
Within a day or two of the announcement of the review, I began receiving emails from beat reporter and editors asking if I could help them get their many-months-old open records requests released. When I approached the open records officer who was the Deputy City Attorney, she relayed story after story of media outlets requesting years worth of the mayor's or some other official's emails or thousands of pages of information about contracts or other official action. In her view, media often requested more information than they needed to disguise what they were really looking for, which delayed requests. In other instances, media would request the information and then move to a different story idea and never use the documents requested.
In retaliation, the open records staff would find technicalities to deny requests. Sometimes, they would print hard copies of thousands of pages of documents, rather than providing them electronically and require the reporter to come to the office and physically review the information while being observed by a staff member. Other barriers used by the City Attorney's office included designating something as part of a legal strategy, pending lawsuit or an "ongoing investigation."
Some of the delays were legitimate in that they are actual exemptions in the Tennessee Open Records statute, though it could definitely be argued that the exemptions were unnecessary or that the City could have chosen to be more transparent than the law required. For example, state law says the government does not have to "create" a record. How that is interpreted is the information requested may exist and be readily accessible, but if it requires government employees to manipulate or put it in an alternate format to meet a request, then they can deny it. In one instance, a request was made for financial and budgetary information contained in two separate Excel files. The request required a simple merging of the two files. Technically, the City could have denied the request because they were being asked to create a new record. Fortunately, finance staff agreed to take the 5 minutes and merge the documents.
Long delays, technicalities and lack of courtesy fueled tensions between the open records staff and the media. One editor I interviewed said explicitly he was preparing to sue the City. The Commercial Appeal, Memphis' major daily, filed suit against the new administration of Mayor Jim Strickland for failure to release information regarding the search for a new police director.
The process put in place to manage public records requests involved an online portal where all requests must originate. That portal was connected to the Deputy City Attorney and her public records staff. Even though every major department had a public records custodian, all requests had to be vetted by the City Attorney. This was particularly frustrating for seasoned City Hal reporters who were used to gathering information from various, cultivated sources.
Theoretically, this portal was to allow for a more customer-friendly response, but the real reason involved hyperbolic concerns over privacy laws. Laws and confidentiality regulations like HIPAA and FERPA compelled the City Attorney to mandate review of all public records requested and that any information deemed confidential, under city, state or federal law be redacted. The problem was that 3 years worth of the mayor's emails could be electronically obtained. However, redaction of names, addresses, social security numbers, health information, etc. had to be redacted by hand. These emails produced 50,000 hard copy documents that had to be read by an attorney or paralegal, redacted using a Sharpie and then forwarded to the Deputy City Attorney for approval.
I was convinced this approach was overkill and could be accomplished electronically. I met with the City Chief Information Officer (CIO) who assured me that the software would do all the work of compiling and redacting. The problem, according to him, was that City Attorney staff did not know how to properly use the system. I delicately approached the Deputy City Attorney about this possibility and elicited a livid response and a memo from months earlier detailing the number of times her officer had requested support from IT and the software provider to address the issue. To settle the matter, I requested a demonstration from the software provider. The City Attorney, Deputy City Attorney, Chief Administrative Officer, Deputy Chief Administrative Officer, Chief Information Officer, other interested parties and I gathered in a classroom with the contractor joining by phone. In a somewhat dramatic moment, the software provider was forced to admit that in fact the system would not redact the information without physically changing a record. A subsequent search showed that there was no proven software that would perform the way the City Attorney wanted to handle public records.
The conclusion for me was that the City Attorney did not need to review every document and that records custodians could be trained to redact certain information. Also, all information did not need to be handled in the same way. Some required a more delicate approach, while others could be preemptively posted online. Finally, if the City inadvertently, in an effort to fill a public records request, released confidential information the effected party would have to demonstrate a harmful outcome in court, so the City's liability seemed to be overstated. Yet, all governments continue to hide behind privacy laws and regulations as a means to deny the media and public information.
- Tennessee high court to hear Vanderbilt rape case records appeal
The Tennessean, eight media organizations and the Tennessee Coalition for Open Government filed suit against Metro Nashville government last fall
Local and state governments have argued for decades that certain information could lead to irreparable harm if the public were made aware of it. While there is debate at the federal level about classified information and what the public should know relative to national security, information at the local and state level is clearly less sensitive.
One area lacking in transparency in Tennessee and other states involves incentives offered to corporations to locate within the state. These incentives involve major tax breaks, tax rebates, construction of infrastructure and direct cash infusions. States and localities and the Chambers of Commerce argue that releasing that information prior to agreeing to the deal would put the state at a competitive disadvantage. Other states could offer a better deal or the company's competitors might learn proprietary information. On the other hand, Memphis and Shelby County have the highest combined property tax rate in the State of Tennessee and a poverty rate in the City of just under 30%., Taxpayers want to know what the return on investment will be before the deal is done and what will happen if the company fails to meet its promises.
Another common area of dispute involves personnel matters. As referenced, the City of Memphis is seeking a new police director during period of the highest homicide rate to this point in any year. The City hired the International Association of Chiefs of Police (IACP) to conduct a nationwide search, but the Mayor also publicly invited the interim police director to apply. The Commercial Appeal filed suit to gain access to those records after being denied by the City. The City argues that the IACP has those records and they are not in city possession with the implication that the records are not public. It is also argued that the information should be confidential to protect the jobs of those who applied confidentially. This same argument was made in the state legislature a few years ago in regard to university presidents. The practice had long been to keep the names of those seeking a university presidency confidential. After much debate between universities and open government advocates, a compromise was reached that allows the information about who has applied to remain confidential until the list has been narrowed to three finalists. At that time the information must be made public.
The most controversial area in which records are kept secret involve law enforcement. Rule 16 of the Rules of Criminal Procedure state what information lawyers must share with one another known as discovery. It has been the position of media and open government advocates that "discovery" based on state law is an open record, while information not required to be shared by lawyers would be exempt. (Tennessee Coalition for Open Government, 3/28/16) The Tennessean, Nashville's major daily, requested police records from the now notorious Vanderbilt rape case. In particular, they wanted to know what the University knew and when. Joined by the other major newspapers in the state, the case went to the state Supreme Court and the coalition lost in a 2-1 decision. The fear is that now police and district attorneys will be able to classify virtually all evidence as part of an on-going investigation taking the teeth out of the public's watchdog.
In Tennessee as in many states, records of law enforcement misconduct can be kept secret. In Memphis, those records are "personnel matters" or "part of an on-going investigation" and remain largely hidden until there is some disposition to the case. Recently, in the wake of Ferguson and local officer-involved shootings, the District Attorney and City Police agreed that the new policy is all officer-involved shootings will be investigated by the Tennessee Bureau of Investigation (TBI). Sounds reasonable to have an independent agency investigate, right? Except, under state law, TBI investigations of any type are closed to public inspection even after the perpetrator has been convicted and sentenced. To receive access to those records, the District Attorney must petition the court, and it is up to the court to determine if the records should be released. These practices shield public servants with tremendous power to use deadly force and take away a person's freedom.
The New Frontier
While not all that new as a law enforcement tool, Body Cams, Dash Cams and other forms of media used by law enforcement or seized by law enforcement are the new open records battlegrounds. As Memphis slowly rolls out the largest number of body cameras in the country to date, the City and District Attorney are grappling with how to store the information, but also what can and should be released to the public. In the impatient digital media culture, the fight for these pictures will find its way into multiple courtrooms very soon.
- News-Sentinel Editor Jack McElroy on police records and the Supreme Court decision - Tennessee Coali
The days of "checking the police blotter" are numbered after a Tennessee Supreme Court decision that all police investigations are confidential.
- Sunlight Foundation
Making government transparent and accountable through data, tools, policy and journalism.