Keeping public information private

Tom MacWright, a software engineer who bicycles to work in Washington, D.C., had no idea his search for a copy of the city’s cycling laws would become part of a simmering national debate about open government.

Troubled that valet parking stands were blocking bike lanes, he wanted to create a website that included a link to the laws. Should be easy, right? After all, a law is by its very nature, a public record.

But in the District and in many other places across the country, the rights to republish local laws in a user-friendly, searchable format, don’t belong to the people or the governments. They belong to the businesses that contract to publish those laws.

For years, the national media has focused on federal failures to disclose public information. The Obama administration was roundly criticized for failing to live up to early promises of greater government transparency. And today, there’s scant evidence that President Donald Trump’s administration will be any better.

Meanwhile, state and local secrecy is growing, the result of tight budgets, a decline in local news coverage and increased outsourcing of government functions.

Robert J. Freeman, executive director of New York’s publicly funded Committee on Open Government, one of few such agencies in the country, says U.S. jurisdictions have fallen behind countries such as Estonia, Mexico and Peru in sharing records and keeping public meetings public.

“You need a government champion who works independently to make the laws work,” he said. But few governments in the United States have them. In many states, the only way to pry loose information is to file a lawsuit.

Few people, if any, have recognized the growing trend of government secrecy. I began to see it while covering local government for The Washington Post.

I requested copies of outside contracts for the Prince George’s County Council in Maryland at a time when county employees and other contractors were seeing their pay frozen, and government programs were being cut. One contract was with Judy Smith, a crisis management expert and the model for “Scandal,” the popular TV drama. Why would the council have a contract with Smith when it already employed five public relations staffers for nine council members? The contracts and invoices might explain the need, I thought. The council’s first response? I would have to file a formal public information request. The council’s attorney declined to furnish the documents for 30 days, allowed by law. But that was unnecessary because the records were already in a file cabinet and could have been provided fairly quickly.

Eventually, I learned that the council had a standing $160,000 contract with Smith, a $64,000 contract with a doctor already employed full time at Children’s National Medical Center; and a $160,000 contract with a financial adviser, even though it had its own staff experts. Even some council members were unaware of the contracts. Still, county officials refused repeated requests to discuss the contracts.

I knew from my reporting experience that the county was particularly secretive about such contracts, but I figured this could not simply be a problem in one Maryland county.

In researching “State Secrets,” a series published by Reveal from The Center for Investigative Reporting, I learned a disturbing truth: State and local governments keep all kinds of public information away from the public.

Here are just a few examples:

• At least 20 states have passed laws restricting public access to police videos from dash and body cameras. They say the technology came too quickly; rules and regulations will eventually follow. Time will tell whether transparency is given a high priority.
• A little known federal law allows states to keep secret engineering studies that show which roads, bridges and intersections are in most need of repair and federal dollars. A few states do make that information public, including New York and Kansas.
• The U.S. Supreme Court decided in 2013 that states need only fill public information requests from residents, or in some cases citizens, of a state.
• State and local governments charge outrageous sums for public information. For example, Massachusetts State Police wanted $2.7 million from a lawyer for documents about breath alcohol tests.
• Crime maps, public contractors’ hiring and pay practices, court records and judicial opinions; building codes and standards; and public university graduation records are in many places off limits to the public, or only available for stiff fees.
• School budgets are public, unless the documents are for charter schools. Some states have placed restrictions on information about how public money is spent by the charters. For instance, Arizona set up nongovernmental nonprofit entities to oversee the charter. That put information about staffing, salaries, contracts and other information out of public reach.
• In Tennessee, a state board created to assess state transparency regulations held meetings in secret.
• Utah won’t make public the list of licensed pet owners.

The result is that the public ends up paying an exorbitant price for state and local secrecy. For instance, when governments deny access to what is clearly public data and defend their secretive practices someone has had to sue and the public pays the legal bills. When governments fail to post documents on a website, and give out the same information in paper form again and again, there is waste.

Most significant, lack of transparency poses a major risk: The public suffers when public information remains secret — masking poor practices, danger to public safety, corruption, and waste, fraud and abuse.

Miranda S. Spivack, a former reporter and editor with The Washington Post, is a visiting professor of journalism at DePauw University.