Sunshine Week: The Forecast is Mostly Cloudy

Open government laws, in state after state, are being damaged and weakened, with increasing frequency, by new exclusions, loopholes and crazy exemptions that promote more secrecy and a lot less transparency.
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COLUMBIA, Mo. -- Heading into "Sunshine Week," many open government advocates across the country feel they have much more to bemoan than they have to celebrate.
Even if no court or attorney general ever chastises Wisconsin's Republican legislators for violating open meetings law notice requirements, the convoluted web of parliamentary rationalizations surrounding their vote last night is still beyond ordinary comprehension.
Meanwhile, Utah Gov. Gary Herbert has signed into law a measure that now means that fewer than half of all U.S. state legislatures hold themselves to the same levels of transparency they prescribe for others.
Worse yet, open government laws in state after state, whether or not their reach goes to lawmakers themselves, are being damaged and weakened, with increasing frequency, by new exclusions, loopholes and crazy exemptions that promote more secrecy and a lot less transparency.
President Obama's openness pledge has garnered a lot of attention, with advocates questioning whether it was a false promise and whether his professed belief in transparency will ever make its way down through the vast federal bureaucracy.
But at the state and local levels, there has been little notice of an ongoing frontal assault on open, accessible government. When viewed comprehensibly and nationally, what has been happening in state legislatures all across the land has been downright scary.
David Cuillier, an assistant professor of journalism at the University of Arizona whose specialty is open government, said the sweeping new changes to Utah's Government Records Access Management Act, which goes by the folksy-sounding acronym GRAMA, will leave Utah residents with less access to information about their government than residents of Australia, Ireland and Mexico, or even Albania and Kyrgyzstan.
"I'm guessing most countries have better FOIA laws than what Utah will have," said Cuillier, who had based the first observation on quick, informal survey.
Unless good-government common sense and conscience overtakes Utah's leaders before summer, that state's lawmakers will no longer be subject to provisions of its open records law.
Backers said the change was needed because Utah lawmakers were being bombarded and overwhelmed by frequent, time-consuming, privacy-invading requests for records. But when someone went to the legislature's general counsel to find out just how many requests the state's lawmakers had received so far this year, it turned out there had been only eight.
Utah's new law also exempts virtually all electronic communications, including voice mails, instant messages, video recordings and text messages.
And, Utah bureaucrats with something to hide will have carte blanche discretion to discourage records requesters with high copying charges and unexplained delays.
The dubious reforms were ramrodded through the legislature in less than three days, with little rational thought, no honest dialogue and not a single public hearing. Gov. Herbert signed it into law on Tuesday, after some kind of pretense that involved lawmakers recalling it from his desk for further consideration.
Linda Petersen, president of the Utah Foundation for Open Government, saw the gesture of recalling the measure from the governor's desk as "a political ploy" aimed at getting critics "to move on and forget about this horrible piece of legislation."
"We're not going anywhere," said Petersen.
But as bad and disappointing as their actions were, the Utah lawmakers weren't alone in waging their war against openness. Elsewhere, there are plenty of challenges for proponents of openness.
In Tennessee, open government advocates are fighting proposals that would permit withholding of all 911 dispatch records and allow local governments to decide on their own how much they disclose about tax breaks and enticements for "economic development."
Another change would allow charging requesters for the time it takes government staffers to obliterate the records they request with markers, Sharpies and other redaction tools. A similar measure on charges for staff time spent retrieving, researching and preparing records for release was successfully defeated in Washington state, where openness advocates breathed a sigh uttering the old baseball adage, "There's always next year."
In Maine, a new governor who promised the most transparent administration ever, has created a new business advisory council that would hold its meetings out of public view. In Virginia, open government advocates fought off a legislative proposal that would have allowed state agencies to seek anti-harassment court orders against records requesters who burden them too much.
Advocates in Ohio are fighting a push by university presidents to make their own rules on responding to requests for records.
And in Maryland, open government proponents are fighting a bill that started with an idea they liked: Making electronic records available in formats that are searchable, and usable for aggregate and quantifiable analysis. But by the time lawmakers were done drafting, marking and amending it, those proponents were horrified by parts of the measure that allow erasing of data, excessive charges for providing electronic records and a scheme that lets private vendors gain rights to sell public data at a profit.
If you are given to conspiracy theories--and I'm not usually prone to them--one might fear that somewhere out there is an evil operative pulling the strings and calling the shots.
Perhaps the secret strategy of that sinister, behind-the-scenes champion of government secrecy was coaxing Utah's and Wisconsin's leaders into overreaching to such an extent that no one would notice what's happening elsewhere.
I only wish I was just saying this entirely in jest. Be assured, though, there are powerful special interests who favor keeping citizens in the dark, and allowing governments to operate behind closed doors.
Who knows how the drama in Wisconsin that has been dominating the cable news nighttime talk shows will ultimately play out? Who knows for certain if the meeting where Wisconsin public employees' collective bargaining rights were stripped away will be officially declared illegal?
The experts I trust in that state tell me that Wisconsin's legislators are still among those covered by an open meetings law and that last night's hurried meeting was indeed illegal.
But they also suspect that if the action is invalidated at all, it will just be long enough for the Republicans to have a do-over once their Democratic colleagues are back in town. It's just another oopsy. Veteran observers of public affairs have seen them before.
New, however, is the phenomenon of a brand new bill finding its way to a conference committee before anything resembling it had ever come up for a vote in one of the two houses.
Maybe I shouldn't begrudge power grabbers the satisfaction that comes with successful parliamentary maneuvering. But in a year of so many challenges to openness and transparency, the public should be wary of any new tricks for those hostile to "sunshine."

Ken Bunting is executive director of the National Freedom of Information Coalition (NFOIC) at the University of Missouri School of Journalism. He is a former reporter and top editor who worked for the Fort Worth Star-Telegram, the Los Angeles Times and the Seattle Post-Intelligencer, among other newspapers.

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