On the heels of last week's reflections on the psychological impact of transparency in government, an exploration of the natural and legal challenges associated with opening up government is in order.
I sat down with Elon University Associate Provost Dr. Connie Book the other day, who also serves as the Executive Director of the NC Open Government Coalition's Sunshine Center. The interview was illuminating to say the least, and I'd like to share with you some of the things Connie and I discussed.
While you may not be familiar with the Sunshine Center itself, you've probably read some of their press releases, which often use weather references such as a "cloud of darkness". That specific phrase is (unfortunately) the way they describe our General Assembly. Here's more:
The necessity of an informed citizenry is a core value of each organization participating in the North Carolina Open Government Coalition. Democracy functions best when citizens know what government is doing; this requires access both to public records and to the public decision-making process. The people have an unalienable right of participation in and access to the governments that they have instituted among themselves.
While several states have open government entities which share many of the same principles, each one has its own evolutionary history. In the case of North Carolina, the seed was planted back in 1995, in the wake of a Pulitzer Prize-winning exposé by News & Observer reporters Pat Stith, Joby Warrick and Melanie Sill dealing with NC's hog industry. In addition to the pork-related problems exposed, the reporters discovered something else: a pervasive and systemic resistance by government to release documents and information needed to fill in the blanks of the story.
In the fifteen years following that project, efforts to break down those walls have been either ignored or actively resisted, but the Sun may be starting to shine through the clouds:
Only time will tell, but the 2005 amendment to the N.C. Public Records Law that requires judges to award attorney fees to prevailing parties may have one of the biggest impacts on the state’s law in its 73-year history. Prior to the change, judges rarely awarded fees, and there was little deterrent to break the law. Now, government agencies will likely lose big bucks if they refuse to release a record and lose in court. Moreover, individual public employees can be forced to pay fees if a court determines they intentionally violated the Public Records Law.
It could prove to be an effective double deterrent. First, it will likely cause individual public employees to be more wary – and thus more knowledgeable – of the law. Arbitrary denials of records requests should become less common. Second, government agencies are likely to take a long pause before deciding to fight it out in court.
While the history of public records in North Carolina is surely mixed, overall trends are more promising for the most part. The cultural climate may also be improving. The frequency of inquiries to the Sunshine Center suggests that professionals and ordinary citizens are vigilant about their right to access the state’s records. With the law itself now holding public officials more accountable and a public becoming more vigilant, the forecast for access in North Carolina may be getting brighter indeed.
The issue of attorney's fees is a big one; even mainstream media orgs have budget limitations, and with sales revenues tanking, those limitations are even greater. The average citizen with moderate means couldn't even contemplate pursuing a lawsuit to secure hidden information prior to this law, so the door creaks open some. But an even better approach, which has yet to be enacted, would be the creation of third-party mediation, possibly in the form of an ombudsman. This would keep most attempts at discovery out of the courts, while reasonably protecting the interests of both the public and those who serve.
Aside from legal hurdles, the biggest "natural" limitation to government transparency may be a lack of awareness in the general population itself. Making the public familiar with laws pertaining to their "right to know" and methods to access such is one of the key goals/responsibilities of the Sunshine Center. Two demographics which have been identified as least knowledgeable in this area are senior citizens and youth, and the Center is focusing much effort on the latter, providing educational materials and on-site instruction to students state-wide.
And these efforts have been fruitful. The Elon Poll has found public awareness of open government issues to be increasing. Over a span of only a handful of years, awareness has risen from 21% to around 47%, a factor which could be a more powerful impetus for change than any other.
And that may help offset (at least part of) another problem which is cause for concern, the thinning ranks of investigative reporters, an issue we have discussed here more than a few times. Between state and local governments, there are literally hundreds of thousands of documents, meeting minutes, etc., and knowing what to ask for requires knowledge and experience. Thanks to economic factors impacting the metamorphosis of the "old" media model to the (yet to be defined) new model, that brain trust is shrinking. Fewer questioners amounts to fewer questions asked, and the clouds roll back in.
As citizen-journalists, I'd like to think we have not only an opportunity, but a responsibility, to step up and ask those needed questions. Here are some resources which can help provide a framework for doing that.
Lastly, I'd like to thank Connie and the rest of the folks that comprise the NC Open Government Coalition for their efforts on our behalf. Let the sunshine in.