Sunshine Week

It’s Sunshine Week, and it doesn’t have anything to do with the weather, which is gorgeous by the way.

No, Sunshine Week is a week dedicated to openness and transparency in Government, something that all too often is given lip service, but not actually followed through with. If the ability of the people, to be informed, or investigate the actions of all levels of government, from local up to state and federal, is hampered, through any means including but not limited to; withholding documents, outright obfuscation, or making access to information unnecessarily difficult, our ability to hold that government accountable is hindered.

In order for representative democracy to function in a way that ultimately serves the people, access to information, regardless of how trivial or important it may seem to the government, is critical.

That is the foundation of what Sunshine Week is all about.

While Tennessee may place a high value on access through open meetings laws, our laws regarding access to government documents are sorely lacking. The ability to see government in action, and have proper notice for such actions is important. The ability to easily access the documents that may guide those decisions is of equal importance.

In many cases, including simple discovery of donors to local political candidates, the barriers to easy access are unnecessarily high. While State, Federal, and even Shelby County governments have made this type of access more available, there is still a good deal of work to be done in providing sunlight to functions of government both here in Shelby County and other regions of the state.

The lack of easy access reinforces the idea that government doesn’t want to be held accountable or fears scrutiny. As Frank Gibson, Executive Director of Tennessee Coalition for Open Government noted in USA Today:

“It’s part human nature and part power” when officials fail to disclose information to the public, says Frank Gibson, executive director of the Tennessee Coalition for Open Government. “Public officials are fearful that if they’ve made a mistake, they’ll get into trouble if it gets exposed, so they try to hang onto everything.” Source

The problem with the attitude that Gibson describes is it feeds the perception that people in government have something to hide and that government is broken, when in all liklihood, just the converse is true. There are thousands of little things that government does right every day that go unheralded. Without scrutiny, these things go unnoticed. So while scrutiny may expose failures, it can also expose successes, something that most certainly is in the best interest of those who have chosen a defensive posture rather than openness.

In this time of easy access over digital networks, to information, a great deal of available information is obscured in a maze of byzantine bureaucracy that, despite the best efforts of the best search engine designers, is still often out of reach. That doesn’t even take into account the information that is not readily available.

So, while the tools have become more advanced, and access generally has become more available, there are still barriers to that access, some of which deal primarily with this bureaucracy, and some that are far less innocent uses, or misuses, of those tools.

The recent focus on the document dumps of Wikileaks is a prime example. Putting the legal troubles of Julian Assange aside for a moment, many of the documents released thus far that were marked as “confidential” contain information that is anything but. One has to wonder about what “compelling government interest” exists to keep these documents “secret” in a time where the sheer volume of information available might have the same effect.

The notion of a “compelling government interest” is set forth in more 1st amendment Supreme Court decisions than I can count. However, one in particular comes to mind. In the landmark 1971 Supreme Court per curiam opinion of New York Times v. United State regarding the publishing of the “Pentagon Papers” the court held:

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree.

In seeking to enjoin both papers from publishing something that has been testified to in the halls of Congress, the United States sought to shield itself from scrutiny under the banner of “national security”. While certain passages of this huge collection of documents may have met that threshold, the entirety of the collection did not, which ultimately led to the publishing of the collection as a whole.

Based on this and other decisions, there are instances where immediate public scrutiny may not serve the public, or the government that serves that public’s best interests. However, the threshold is and should be high, and as such, the burden of withholding information should be on the government rather than those who seek that information.

But shielding one’s self from scrutiny is not just the business of government bureaucrats. It happens in the legislature as well. Just yesterday, the House Education Subcommittee was taking up HB0130, a bill that would restrict the rights of teachers to collectively bargain. In the meeting an amendment was offered, and parliamentary movements were made to force a vote on the issue. Many members who had not been privy to the amendment objected. In fact, the amendment is still not available as of this writing on the State’s web site. A thorough examination of the exchange can be found at TN Report.

What’s unfortunate about this event is not that it could have been so much easier. The amendment contained concessions that would have kept much of the issue from being quite so partisan. It’s not what happened as much as it is HOW it happened that elevated the level of distrust. Here’s a rundown of the still yet to be published amendment.

While we, in the universal sense, have a long way to go, some government entities are taking transparency to the next level. Today Arkansas Gov. Mike Beebe signed into law, a bill that would require the state to set up a website to tracking spending by most agencies. This kind of immediate access to information is valuable in answering questions and informing the public about what the state is spending money on, how much, and why. While not every dime the state spends is to be tracked on this site, it is a step in the right direction.

In the end, accountability and transparency from government isn’t something we should passively expect, it is something we must actively demand. In making those demands, we might also learn that there is more information out there than we are aware of, and find ways to help governments better address the needs of information seekers. Our republic is, and was always intended to be, a collaborative effort that extends beyond the ballot box.

Opening up the channels to that collaboration can and will not only make a better government, but also increase the trust of the governed.

See Also:

Dyersberg State Gazette
Tennessean
Knox News Sentinel
TN Report
Memphis Daily News
Memphis, Shelby County mayors lobby for governments to keep secret some development prospects

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