Governing The States and Localities by Katherine Barrett & Richard Greene
The Holy Grail for government transparency is making it easy and simple for citizens to know what their government is doing and how it arrives at its decisions. We’ve always believed this can be achieved, in part, by providing access to public records.
Of course, transparency isn’t open-ended. Every state has statutes clarifying what information must be made public and what information should be kept sealed. However, in recent years there’s been a steady chipping away at the public’s right to know. “This is a trend,” says Barbara Petersen, president of the First Amendment Foundation, a Florida nonprofit that advocates for the public’s right to oversee its government. “It’s not just coming through legislation, but also through the agencies.”
In Kentucky, for instance, the attorney general’s office decided two years ago that government information transmitted through personally owned devices is immune from public scrutiny. In other words, if two council members sent emails back and forth using their own cellphones, the public would have no right to see those emails, no matter how much impact the conversation in them might have on a council decision. “If discussion about a dispute was conducted on these private devices,” says Amye Bensenhaver, director of the Bluegrass Institute’s Center for Open Government, “then when it came to the public meeting, everything could have already been worked out.”
Even Florida, long known for its open public records law, has begun pulling back. The last time a systematic count was taken, the state had allowed for over 1,100 exemptions in which information could be concealed from the press and public.
What’s more, although the state’s law is expansive, there is no straightforward way to make sure it is implemented. “We’re really stuck,” says Petersen. “We’ve got this great law, but no means to enforce it other than through the courts.”
Another burgeoning threat to the utility of public records laws is the exemption of legislative documents, a step such states as Iowa, Massachusetts and Oklahoma have taken. The state of Washington came close to enacting just such a bill, but the governor vetoed it and no attempt was made to override the veto thanks to a loud and effective outcry from the press.