Though laws in every state say government records and meetings must be open to all, reality often falls far short: Laws are sporadically enforced, penalties for failure to comply are mild and violators almost always walk away with nothing more than a reprimand, an Associated Press survey of all 50 states has found.
Even in the handful of states that monitor such cases, when citizens appeal over lack of access to information, the government usually wins – and keeps public business secret.
Why does it matter?
Advocates for open government say public trust is at the heart of our democracy, that scrutiny keeps public officials honest, and that information is the foundation of informed debate.
“We’re in an era, clearly, where there’s a lot of distrust in government,” said Bill Chamberlin of the Marion Brechner Citizen Access Project at the University of Florida. “The more the public officials are open in their conversation and show the documentation that they’re basing decisions on, it’s going to help the public have faith in what officials are doing.”
The AP’s survey – conducted to coincide with Sunshine Week, a nationwide effort to draw attention to the public’s right to know – gathered material from each state on its open government laws and penalties. Additionally, for the years 2004 to 2006, it sought more detail on open government complaints in states with the best record-keeping. The AP found that fewer than 10 states effectively track what happens in such cases.
Looking more closely at those monitoring efforts, a snapshot emerges: Oversight agencies and attorneys general are more likely to rule in favor of government offices that keep documents secret and doors closed. And when they rule that the law was broken? The overwhelming majority of decisions bring a “don’t do it again” warning.
In Fort Smith, Ark., a resident fought to learn what city officials were doing when they secretly decided to buy a vacant downtown building. David Harris proved in court that the officials broke the law, but the state Supreme Court last year declined to levy the only punishment possible – the $10,000 in legal fees it cost Harris to make his case.
And in southern Connecticut two years ago, the water authority that oversees a small lake stonewalled a former member who sought financial audits, then went behind closed doors to settle policy on winterizing boats. After the former member complained, the state oversight commission ruled that the authority violated the law, but rejected a request for a civil penalty and instead told officials to make the documents available and be public about their business.
“There is largely a culture in state and local government that violating public meetings and open records laws is not the same as committing a crime,” Chamberlin said. “It’s largely treated as a nuisance rather than a law.”
Those charged with enforcement of open government laws strongly disagree.
They take the law very seriously, they say, but contend a reprimand is usually punishment enough for a local council member or village mayor who is guilty only of misunderstanding the law.
“We think the carrot is preferable to the stick. We use the carrot in almost every case,” said Nebraska Attorney General Jon Bruning, who helped toughen his state’s open government or “sunshine” statutes when he was a state senator. “Our experience is that local officials want to abide by the law, but they often don’t know how.”
The AP analysis found that nearly all states have crafted penalties for those who violate sunshine laws, but the majority do little to keep track of how often the law is broken and what the punishment might be.
The federal government does a much better tracking job, but has no provision for punishment and little sympathy for appeals when federal agencies reject requests for documents.
Two states have no penalties at all if someone breaks the law; eight more have no sanctions for one of the two guarantees of open government – open meetings or open documents. In practice, few penalties are ever sought.
Many states allow for people who sue to win attorneys’ fees, but place the standard so high – officials have to willfully break the law – that it’s rarely met.
Consider a dispute over spending in a volunteer fire department in Riverdale, Iowa, a town of 650 people just up the Mississippi River from Davenport.
Two citizens – an interior designer and a chiropractor – became suspicious of spending in the department, spurred by what they said were drunken come-ons at a Christmas party and the purchase of several ladder trucks in a town with no high-rise buildings. They asked for information.