Government is at its most innovative when ducking transparency
Seth Stern
February 3, 2023
Chief Justice John Roberts, like Justice Clarence Thomas, faces questions about potential conflicts of interest arising from his spouse's work. A new federal law makes it harder for journalists to report on similar ethical concerns in the lower courts.
Government is often criticized for failing to offer creative solutions. Not so when it comes to circumventing freedom of information laws to hide official records from the public.
Government agencies abusing exceptions to open records laws is nothing new. But several recent developments illustrate how those in power are feeling increasingly emboldened to enact arbitrary rules declaring themselves exempt from transparency obligations in the first place.
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This disturbing trend seems to be surfacing at all levels of government — state and federal, from the legislative branch to the judiciary to the military.
Legislatures and courts need to be prepared to address workaround tactics by those seeking to defy both the letter and the spirit of open records laws. Otherwise, hard-fought protections of the public’s right to know will continue to erode until they are rendered meaningless.
A Missouri judge acknowledged that “the Sunshine Law requires access to those public records which are not closed, i.e., open records.” Sounds good so far. But the judge went on to reason that officials can avoid the Sunshine Law by just not opening the records in the first place.
A 2018 amendment to the state constitution had clarified that the legislature was subject to open records laws (apparently some legislators previously had the nerve to claim otherwise). The following year, the Missouri House enacted a rule allowing itself to keep records, including those that contain “caucus strategy,” out of public view. The court upheld the move as within the House’s rulemaking authority, ignoring not only the constitutional amendment but the policies and public interests behind the Sunshine Law.
Arizona’s legislature went a step further. It exempted itself from the state’s open records laws altogether and granted legislators permission to destroy their emails. The House even empowered itself to delete texts and social media posts.
The Republican-led legislature cited “privacy” concerns. But open records laws reflect a consensus that government officials should not enjoy privacy when conducting official business. Critics noted that, had the rule changes been in place in 2020, they would have prevented investigation into the purported “audit” of Maricopa County intended to overturn the 2020 presidential election.
Frankly, there is no reason the Arizona legislature would have gone down this path unless it had something to hide. Hopefully the state’s investigative journalists can figure out what, despite their reduced access.
The military is employing similarly dubious tactics to avoid a 2016 law requiring prompt access to court records “at all stages of the military justice system ... including pretrial, trial, post-trial, and appellate processes.”
The Pentagon, according to new guidelines, somehow took that to mean it could provide limited access only after the fact once a case has concluded (or, when cases end in acquittals, not at all). Transparency, however, is most vital during the trial and pretrial stage, before the damage has been done. And when defendants are acquitted, the press should be able to question what went wrong for prosecutors or why charges were brought in the first place.
The guidelines are irreconcilable with the law, which requires the military justice system employ, “insofar as practicable, the best practices of Federal and State courts.” No one would tolerate federal courts sealing their records until a verdict is handed down. A court martial should be no different. In fact, public access is even more vital in the absence of a civilian jury.
: We wrote last month about the unconstitutional Judicial Security and Privacy Act which empowered judges to scrub public records and private websites of information about, for example, where their spouses work. We noted that the law creates “a backdoor Freedom of Information Act exemption outside FOIA’s appeal processes” and explained why its purported exception for matters of public concern is essentially useless.
Congress passed the act despite ongoing controversy regarding Ginni Thomas’ political activity and the potential conflicts it creates for her husband, Supreme Court Justice Clarence Thomas. This week, Jane Sullivan Roberts, wife of Chief Justice John Roberts, made headlines due to her legal recruiting for law firms that have business before the court. That means over 20% of Supreme Court justices face potential conflicts of interest due to their spouses’ employment. Journalists, fortunately, have managed to report those high profile instances despite the new law. But are we to believe that similar conflicts do not exist among district judges who, despite their lower public stature, have the power to sentence people to incarceration and even death?
When government agencies cannot escape open records laws altogether they often turn to stall tactics or price gouging. The Nebraska Department of Environment and Energy attempted to charge the Flatwater Free Press $44,000 to produce requested records related to nitrates in the water supply.
Fortunately, the Free Press is suing. Its attorney noted that the NDEE is seeking to charge not just copying costs for records actually produced but for time spent deliberating whether to produce records at all. In other words, if the NDEE gets its way, the Free Press will have to pay for the time NDEE staff spent finding excuses not to comply with requests.
: The Texas Senate made permanent COVID restrictions that barred reporters from the chamber floor and required them to instead observe proceedings from upstairs. It’s safe to assume the motivation was not public safety. At the federal level, Speaker Kevin McCarthy has so far ignored calls to allow C-SPAN to control its own cameras as it did during the negotiations over the speakership. This includes appeals from C-SPAN itself, Freedom of the Press Foundation (FPF) and numerous others, including several representatives.
Neither the Texas Senate nor the U.S. House cite any policy justification for reduced access. Texas allowed reporters on the floor until the pandemic and, to the best of our knowledge, nothing terrible happened. C-SPAN proved itself fully capable of operating its own cameras without causing any disruption (although some politicians may have been embarrassed).
It goes to show that, unless they foresee political consequences, government officials will almost always default to secrecy. That’s why merely having transparency laws on the books is not enough. Public pressure — and, often, litigation — is necessary to ensure that the laws survive constant and creative attempts to undermine their intent.