November 17, 2006

Let The Sunshine In: Forum Explores Open Government

"... Members of the Alabama Open Records Study Task Force, commissioned by joint resolution of the Alabama legislature in 2005, accepted the challenge to clean up the 80-year-old mess and propose new legislation..."

open booksBefore Samford President Emeritus Thomas E. Corts settled into retirement he agreed to serve as interim chancellor of Alabama's troubled public two-year college system —becoming higher education's answer to Elliot Ness, shedding light on pervasive corruption of the system.  Citizens were able to follow the resulting intrigue thanks to aggressive investigative news reporting based in part on public records. Criminal charges already have been filed and law enforcement investigations continue.  As U. S. Supreme Court justice Louis D. Brandeis wrote, "sunlight is said to be the best of disinfectants."

By coincidence, as the higher education scandal deepened in late October, Samford's Cumberland School of Law and School of Business collaborated to present the forum Changing Open Government Laws In Alabama, focusing on the right of citizens to witness the work of their government. The forum included legislators, archivists, journalists and attorneys whose work is affected by open records and meetings laws.

It seems only logical that citizens should exercise oversight of public acts, but not everyone embraces open government. Law enforcement officials might be reluctant to report crime rates. Superintendents might be embarrassed by school evaluations. University officials might not want sunshine to fall on the politics and economics of their deliberations. Legislators might not want to reveal the influence of lobbyists.

State Representative Blaine Galliher acknowledged the appeal of such secrecy. "Many times, we in the public arena do not want to become public property," he said. But, he added, citizens pay for government and must have access to information in order to have a role in the process of governance. Moreover, he said, public scrutiny is simply part of public service.

The Open Meetings Act
Public scrutiny of state government was increased with the passage of Alabama's Open Meetings Act (OMA) in March 2005. The law closed a number of legal loopholes long used to subvert public participation in government. It applies to both committees and subcommittees, outlaws secret balloting, requires parliamentary procedures and establishes enforcement procedures, all of which help keep public officials working in the light. The law also decriminalizes violations, making violators subject to civil suit, and thus giving the public greater means of redress for violations.

The OMA, welcome as it is, faces legal tests. Panelist Dennis Bailey, an attorney who helped write the OMA, noted that the law so far has not attracted litigation.  But he said that is likely to change because the popular perception is that the law has actually increased secrecy, possibly because it has shed light on the process of Executive Session, the legal means by which officials can meet in private. 

The OMA increased the number of legal justifications for executive session and contains confusing language about the practice.  For example, the law does not require the keeping of minutes for boards in executive session, but places on the boards the burden of proof when the legality of their executive session is challenged.  Without minutes of the executive session, boards have no way to prove that a session was legal.

Perhaps the OMA's greatest flaw is its failure to prevent so called "serial meetings," which allow officials to legally conduct public business in private simply by meeting informally in groups smaller than those required for a quorum.  Panelists noted that the practice of serial meetings defies the commonsense understanding of the term "meeting" and is likely to be challenged in court and outlawed, as it has been in other states.

In spite of its flaws, the OMA's reform of the state's antiquated and ineffective open meetings law inspired reform of the current open records system, established in the same era as the old open meetings law and just as badly out of date. Drafters of the current law in the 1920s had nothing to say about email correspondence and other digital documents, for example. The current system is further burdened by hundreds of different records request forms, wildly varying fees ($25 per page in one community) and impossibly high hurdles erected by legislators for the express purpose of impeding public oversight.  

Members of the Alabama Open Records Study Task Force, commissioned by joint resolution of the Alabama legislature in 2005, accepted the challenge to clean up the 80-year-old mess and propose new legislation.  The group, which includes several of the Samford event 's panelists, expects its recommendations to be considered by the state legislature during its 2007 session. Among its many challenges, the legislature must determine who will have custody of public records.

Who Is Going To Be Sued?
Panelist Felicia Mason, executive director of the Alabama Press Association, noted that there currently is no recourse short of court action when a public records request is denied.  The history of court challenges to the current open records law thus constitutes a Who's Who of state newspapers.  But that raises the question of "Who is going to be sued?" under the proposed new law, as panelist Scott Morris of the Alabama Public Service Commission put it.

Morris noted that state public officials under oath enjoy immunity from lawsuits concerning their good-faith official actions. Public employees—including those likely to be identified as public records custodians–have no such protection. Morris said a new open records law should either place key records decision-making responsibilities at the level of public officials or extend legal protection to the employees who must otherwise have custody of public records.

Morris said the legislature also will need to help determine appropriate fees for records requests—not in order to discourage requests, but to offset what might be significant state expenses. Although many records are online and Morris's office isn't often overwhelmed by requests, he noted that complying with a request for a large number of documents could be costly in terms of materials and staff time.

Even matters as seemingly simple as records request forms are controversial. State Representative Cam Ward said the question, "Why do you want this information?" is "one of the most repulsive things" one can find on a public records request form. He said a new proposed form would eliminate the question and be optional in any case, offered simply to protect the requester by creating a record of the request. Resolving this and other issues will require a delicate balancing act, with public access on one side and responsible control of public records on the other.

Unnecessary Disputes
Mason, of the Alabama Press Association, described a problem the legislature may not be able to solve by itself. She said many citizens simply don't understand what records are open to the public. Representative Ward, agreed. "There is an inherent lack of trust of government among constituents," he said. He acknowledged that the mistrust sometimes is well-founded, but he said disputes sometimes result from misunderstanding of how to gain access to public records. The lack of a clear process helps create such misunderstanding, he added.

So, with the legislature expected to take up open records reform in 2007, when can Alabama's citizens expect clarification of the public records process? Morris observed that the open meetings law—less far-reaching than the proposed open records reform—required from four to six months from signing to implementation. But that isn't the whole story because it seems clear that the legislature can go only so far in opening government. The courts will be called upon to resolve some details as citizens continue to bring sunshine to the halls of government.

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