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Open Records Laws Go From Sunshine to Sunburn

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"Sunshine," wrote Louis Brandeis, "is the greatest disinfectant." There is a deep truth in this classic bit of Progressive wisdom. Government cannot be accountable if it works in secret. Yet governments always seek to make as much information secret as they possibly can, sometimes to the point of unintentional comedy.

A colleague of mine was contacted by the State Department while he was in Africa and asked to write some assessments of the political situation there. As soon as those assessments were received they had a "classified" label slapped on them. A year later the State Department wanted to have some follow-up discussions... but they couldn't actually let him see his own papers, because he did not have a security clearance.

Candidate Obama spoke strongly about the excessive secrecy of the Bush administration... unfortunately, President Obama's own administration seems just as addicted to secrecy as any of the others, a tendency that turned unintentional comedy into a Kafkaesque art form recently when a ceremony celebrating Obama's receipt of an award for transparency in government was closed to the press. (Watch John Stewart's description here -- look for the April 4th, 2011 show entitled "Victory Lapse.")

Excessive secrecy in government, in other words, is neither a conservative nor a liberal tendency, it is a political universal. And the only effective weapon against that tendency is sunshine. That was the theory behind the Freedom of Information Act. The law was originally proposed by Democrats during the Eisenhower administration, then it was passed over Johnson's vehement opposition with the active support of Republicans, including a young congressman named Donald Rumsfeld. The U.S. was the third nation to adopt a law of this kind, trailing Sweden and Finland -- today more than 60 countries have FOIA laws.

In recent years, however, that sunshine has begun to produce severe risk of sunburn. Broadly written state and federal "open records" laws have converted an instrument for ensuring transparency into a handy weapon to discredit political opponents, intimidate critics, and simply harass private citizens for no better reason than that they are government employees.

There are two separate issues to be considered when we talk about these kinds of laws. First, what "records" are being sought? Second, who is a proper subject of a request in the first place? Courts have done a good job of limiting the scope of requests by defining "records" to only include materials relevant to the performance of an official function. But on the second score the laws are completely out of control.

In Wisconsin, for example, any public employee -- teacher, cop, janitor, or food server -- can be the subject of an open records request. No reason is required for an open records request, no justification or evidence to support suspicion of wrongdoing. Did Johnny get a "C" in algebra? File an open records request on his teacher and go fishing -- maybe you'll find something embarrassing, and even if you don't you will have imposed costs and burdens on the school that will make that teacher think twice. Better yet, go fishing and see if you can find something to embarrass a whole district full of teachers. I am not speaking hypothetically; as reported here. one of the main cases concerning open records requests decided by the Wisconsin Supreme Court had to do with a parent's request for a teacher's e-mails in order to "see if teachers were wasting time during the school day."

Most recently, a controversy has arisen here in Wisconsin (where all good controversies seem to happen these days) because the Republican Party submitted an open records request to the University of Wisconsin. The target of the request was Professor William Cronon. On March 15th, Cronon published a blog post in which he described the operations of the American Legislative Exchange Council (ALEC) and specifically the role that organization had played in coordinating the drafting of legislation around the country, including Governor Walker's controversial proposed bills (the Budget Repair Bill and the proposed budget.) Here's that post. (The ALEC describes itself as a "nonpartisan ... organization of state legislators which favors federalism and conservative public policy solutions.")

Two days later, on March 17th, the Republican Party of Wisconsin filed a request under Wisconsin's open records law for the following:

Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

The response was predictable and appropriate outrage at this obvious attempt to stifle criticism and threaten academic freedom. University Chancellor Biddy Martin issued a thoughtful and carefully worded statement, university counsel oversaw the production of emails in response to the request, the Wisconsin GOP announced that they were satisfied with the response, and the Faculty Senate adopted a strongly worded resolution. And that was that.

Except that isn't "that" at all. The Republican Party of Wisconsin's request was a perversion of the purposes of open records laws. They took a law that was crafted to ensure openness and freedom of information and expression, and turned it into a powerful weapon to silence political opponents. The request for Professor Cronon's emails had nothing to do with exposing corruption in government; the aim was to find something that can be used to embarrass and silence a public voice that has dared to criticize government officials. And it is not as though this is something peculiar to Republicans or conservatives. In the past, liberal or leftist groups and Democrats have used open records request in just the same way. I don't know who "started it," but today the abuse of open records laws is standard partisan fare for Democrats as well as Republicans, liberals and leftists as well as conservatives and right-wingers.

These laws were intended to ensure that citizens would be able to find out what their government officials are up to. That is a noble cause, one that is essential to a well-ordered democracy. But the terms of the laws have to be reconsidered. A schoolteacher is not a "public official," neither is a firefighter, a secretary... or a university professor. The defenses of these requests all engage in the same word game: they start by saying that requests are always appropriate because citizens have a right to know what public officials are doing. But to make that case you have to drain "public official" of all meaning, and convert transparency in government to private settling of scores.

This isn't an academic freedom issue, this is a democracy issue and a free speech issue. It's part of the devaluation of public employees -- somehow we have reached the point where the people who do the work of running our state are viewed as second-class citizens. But what is going on here is symptomatic of something even deeper and more disturbing. Call it the privatization of repression. Private parties are given access to the machinery of the state to use as weapons to silence, intimidate, and harass those whose views they dislike, or even just to settle a score. That's not sunshine, that's sunburn. The kind that leads to cancer. The laws need to be rewritten, but in the meantime, Democrats and Republicans, liberals and conservatives ... stop it.