Saturday, August 29, 2009

Open Government for All

On Monday, August 31, 2009, the Public Records Act Exemptions Accountability Committee (less formally known as the "Sunshine Committee") will consider my recommendation to eliminate the state legislature's exemption from one of our state's two open government laws. The provision keeps private documents at the state legislature that would be and are available to the public at any other level of government in our state. A little background is helpful.

The state legislature has exempted itself from both of the state's open government laws. As enacted by initiative in 1972, the Public Records Act applied to the state legislature. In 1995, the legislature amended the definition of "public record" to limit the scope of records available to the public from the state legislature. As an aside, the state legislature also is exempt from the Open Public Meetings Act. This means that if the Gold Bar City Council wants to spend $100 on park benches, all of the discussions and the decisions must occur in public. If, however, the state legislature needs to cut $1,000,000 fro the state parks budget, that discussion can be held and the decision made in a closed caucus room. All the public ever sees is the final vote, confirming the decision.

I have no say over the Open Public Meetings Act, but in my role as a member of the Sunshine Committee, I proposed eliminating the legislature's Public Records Act exemption two years ago. In October 2007, I received a letter from the four leaders of the state legislature, asking me to delay action until the State Supreme Court addressed the legislative privilege issue and to allow all four legislative members of the Sunshine Committee to be present for the vote of the Sunshine committee. I agreed. The State Supreme Court decided not to address the legislative privilege. In March of this year, I re-introduced my recommendation to eliminate the legislative exemption, giving fair warning that the Sunshine Committee would be considering the recommendation this year.

This does not mean that the exemption will go away after Monday. The Sunshine Committee does not have the power to amend legislation. All we can do is make recommendations to the legislature. Last year we made 12 recommendations: 8 unanimous and 4 by a majority vote. Included was a recommendation to reverse the Hangartner decision (which says that there is an exemption for attorney-client communications).

The legislature adopted none of our recommendations. The legislature did, however, create 7 new exemptions to public disclosure. While the Sunshine Committee, which was chartered by the legislature to review and make recommendations eliminating exemptions to disclosure, the Legislature continues to increase the number of exemptions to public disclosure each year. Of course, that is how we go to over 300 exemptions. Rather than creating broad generic exemptions, the legislature has chosen instead to craft many narrow exemptions. Each one is tailored for a specific purpose. It is difficult to quarrel with any single one when taken individually, yet the net effect is to have a public disclosure system that is cumbersome and difficult to navigate. Like many areas of government, there is no simple fix. At the Sunshine Committee, we have worked hard looking at individual exemptions and making appropriate recommendations. It may, however, take more time and a different approach to convince the Legislature to act on the recommendations they asked us to produce.

Another matter that we will take up Monday is a proposed resolution to have the legislature sunset all of the exemptions to the Public Records Act after two years, re-examine each exemption and limit all new exemptions to two year periods. The resolution would exclude the original 10 exemptions. While a radical approach, we may need something along those lines if we are going to fix the Public Records Act and return it to its original purpose.

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