Moats: Legislative attitude to government openness disheartening

in Column/Transparency

By Bruce T. Moats

For the Cowboy State Daily

Wyoming citizens are abusing government agencies.

That is according to some legislators and other government officials discussing attempts by those who pay the bills – the taxpayers – to obtain public records.  The discussion took place at the recent meeting of the Joint Judiciary Committee in Gillette.

The attitude toward citizen access to government information was disheartening.  It demonstrated a distrust of the public that I have too often seen as a journalist and now as an attorney representing reporters.  But at the same time, government officials often ask us to trust them.  They say, “Hey, we got this.  We will take care of it.  We got it.” 

To that I quote President Ronald Reagan: “Trust but verify.”

Public access is not just about policing government, which is important, but is more about using the power of our collective judgment to better govern ourselves.  Abraham Lincoln noted that the rest of the world thought it folly for a government to involve people of all abilities and positions.  His answer was simple: Look where self-governance has brought us.

I cringe every time I hear government officials talk about providing public access to information as if it’s an annoying duty that is pressed upon them to the detriment of their regular duties.  Agencies do often struggle with adequate resources to fulfill their missions, but I humbly, with all my heart, say that providing public access is a critical part of those missions.  It is not an extra duty, a nuisance.  Instead, it is essential to democracy.  Listen to someone way smarter than I, James Madison:A Popular Government, without popular information, or the means of acquiring it is but a Prologue to a Farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and the people who mean to be their own Governors, must arm themselves with the power which knowledge gives.

 Gov. Mark Gordon campaigned on transparency.  (By the way, I have never heard one candidate for office ever say they were for less public transparency.)  Gov. Gordon and State Auditor Kristi Racines have formed a transparency group. 

One day before the last meeting of the transparency group, Gov. Gordon’s deputy attorney general speculated before the Judiciary Committee about the possibility that citizens could overrun agencies by making agencies adhere to a 30-day deadline to turn over public documents – a deadline adopted during the last legislative session.

The new deadline has not even gone into effect yet. It will not take effect until July 1. Yet, the deputy attorney general testified, without any real evidence, that agencies can get “inundated” with requests, supporting calls on behalf of some committee members to place restrictions on a bill that has not yet taken effect.  

The Legislative Service Office conducted a survey of local governments and state agencies about the public records requests they received in 2017 and 2018.  The figures were so similar for both years that the survey report only considered 2018. I will note that no municipalities responded to the survey due to a possible email snafu.   What effect that might have had on the results is open to debate.

The governmental entities were asked to “estimate” the number of requests received and to rank the average size of the requests received.  Three categories were given — large (more than 1,000 documents), medium (500-1,000 documents), small (fewer than 500 documents) or discrete document requests for documents that are readily available.  If large requests were the most frequent, then that category receives a one on a scale of four.  If it is the least frequent, then it receives a four.  The agencies were also asked in what percentage of requests did they issue a charge. 

Nearly 60 percent of responding agencies had received three or fewer requests. Slightly more than 80 percent received fewer than 10.  More than 150 of the 177 responses listed the large requests as least frequent.  

Approximately half of the respondents listed requests for discrete documents as the most frequent. Approximately one-third listed the small requests as most frequent.  In nearly 80 percent of the requests, the agency did not level a charge.

The lesson of the survey is that large requests are the exception rather than the rule.  Agencies have not been inundated with requests.  Thus, we are legislating for the exception. 

In my 22 years representing reporters, I rarely have waited more than 30 days for an agency to respond to a records request.  The agency’s attorney and I have discussed, cussed and negotiated a reasonable period for fulfilling a request.  Even the 30-day deadline allows a custodian to take longer if the request is unusual.  I can assure you that I would have no luck with a judge trying to enforce an unrealistic deadline for a large request requiring review of, say, 100,000 emails. The Legislature provided a way to handle these unusually large requests.

We can thank transparency opponent Sen. Tara Nethercott, the committee co-chair, for the LSO survey proving that this is a solution looking for a problem.  Her questions were aimed at showing the difficulties facing large and small agencies.  Conversely, she used the same survey to question the need for a new public documents “ombudsman” created by the Legislature, saying most requests are filled without difficulty and the agencies did not even level a charge most of the time.

Timeliness is often vital when citizens are seeking government information.  There is usually a decision pending, a controversy in full swing.  Getting the information about the horse after it has already left the barn is not helpful.  I believe the creation of the ombudsman was an effort to resolve disputes more quickly than can happen in court.

When your right to information is curtailed, regardless of the reason, the power shifts even more in favor of the government.  Ultimately, it is up to you, the public, to protect your right to know what your government is up to.

 Don’t let anyone fool you that this is all a media issue. Officials don’t care if reporters are given information off the record, but they do care if that information is going to be shared with you, the public. Further, numerous instances of government wrongdoing – improper awarding of bids, improper use of government equipment – have been discovered by members of the public exercising their right to see what is being done with their resources on their behalf.
           The Judiciary Committee should not be working to restrict that right.

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