Open Meetings, Open Records: It’s The Public’s Business


By Gene Policinski
First Amendment Center vice president/executive director

Twelve county officeholders are out of a job in East Tennessee not because of anything they did, but because of the way they came into their positions — in a secret vote by other county officials. And we should all be glad things turned out that way.

A local trial jury found that a dozen people who were tapped in January to fill vacant offices, including county sheriff, were selected behind closed doors by the Knox County Commission in violation of the state’s Open Meetings Act.

The legal action didn’t center on any contention that the officials were doing a bad job, though one critic said the commission selected “relatives, cronies and supporters.” The real point was a basic democratic principle that the public’s business should be done in public, including public appointment of those who oversee the public’s business.

All 50 states and the District of Columbia have “sunshine laws” that aim in one fashion or another to prevent government leaders from meeting in private to discuss public matters. Each law has a few automatic exceptions, most often related to personnel or legal matters. Generally, such laws don’t penalize officials who just happen to meet up at a restaurant or coffee shop as long as they don’t make decisions or set policy as a result. And there’s even a 21st century twist: States are beginning to address the issue of “virtual meetings,” in which e-mail exchanges, sometimes on closed mail lists, take the place of open conversation at meetings and decisions are made in cyberspace.

Officials at all levels — including some defending the Knox County commissioners — complain that sunshine laws paralyze government by preventing regular, informal discussions among those responsible for running departments or dealing with citizens. Some also say officials are forced into unnecessary anxiety about inadvertently violating meeting provisions, thus risking fines or other penalties.

A good argument can be made that such casual, unplanned hallway or lunchroom chats do serve a purpose — information or opinions can be exchanged, people can be updated on progress or problems. And in fact most laws don’t prevent or punish such activity. It is substantive discussions and decisions that are required to be done in an open manner.

As to anxiety: Well, that just comes with the job. Officials have any number of other considerations, many tied directly to public accountability, that don’t apply to private corporate leaders. And with a little education, officials who may have a history of private confabs should have a lot more confidence about how to do their public jobs.

There are other arguments opposed to openness in our public business that are finding more official traction than convenience or cronyism: National security and individual privacy.

A few weeks ago a federal judge in Syracuse, N.Y., ruled that the federal government may withhold name, salary and job information about more than 900,000 government workers, reversing a practice of disclosure that began in 1816 — during the presidency of James Madison, author of the First Amendment and the rest of the Bill of Rights.

Federal officials, stressing 9/11 attack fears, said terrorists might use the information to target federal employees. The specific case involved the posting of such information each year since 1989 by the Transactional Records Access Clearinghouse, at Syracuse University, about all 2.7 million federal civilian workers except those in some law enforcement agencies. Unless the decision is overturned, data about many workers in the Department of Defense, National Park Service, Occupational Safety and Health Administration and more than 200 other agencies will be kept secret.

Again, a good argument for nondisclosure may be possible for individual employees, particularly those in anti-terrorism roles. But sweeping under a figurative secret carpet at one time, without individual or at least specific group-task consideration, the names of hundreds of thousands of workers paid with public money seems unnecessary and unwise — particularly since such information has been public since our fourth president was in office, and the Republic still stands.

Speaking of that: At least we can still see from public records that Madison was a federal employee in the job of president and commander-in-chief from March 4, 1809, to March 3, 1817, working in Washington, D.C., at a reported salary of $25,000 a year.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: firstamendmentcenter.org. E-mail: [email protected].