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June 21, 2018

3/15/2016 6:18:00 AM
It's Sunshine Week 2016

Richard Moore
Investigative Reporter

Sunshine Week - a week to celebrate, and advocate for, open government - is March 13-19, and never has it been more important.

For a few years now, The Lakeland Times has been warning of approaching storms and dark clouds gathering on the horizon, all threatening government transparency. This year, in Wisconsin and around the nation, the storms finally arrived.

In state after state, the public's ability to access government records - the paper trail of how government is conducted on a daily basis and the key to holding government officials accountable - has been under unprecedented attack. According to the Associated Press, for example, its requests for the emails and daily schedules of legislative leaders in all 50 states garnered as many denials as approvals.

That's not all. Legislatures are busy trying to exempt themselves from the open records law altogether. In some states, they assert 'legislative privilege,' based on a misreading of a constitutional guarantee that lawmakers can't be obstructed while they conduct official business, such as being arrested on their way to work.

These days, though, lawmakers want to stretch that protection into an absurd privilege to keep their work records secret, essentially claiming public access is little more than public harassment designed to keep them from doing their jobs.

That demonstrates the mindset right there. When lawmakers view their true employers - the people - as little more than annoying snoops to be evaded, open government is imperiled.

In other states, lawmakers want to exempt themselves outright from the law. In Wisconsin, the Legislature has been craftier, subjecting itself to the law but exempting itself from the records' retention statute that requires them to keep records for any length of time.

We don't mean to suggest with all this that it's lawmakers only who are guilty of undermining transparency. Government bureaucrats are doing their part to help slam shut the doors of government. And they have many tools in their toolkits, such as ludicrous fees.

While many states, including Wisconsin, allow officials to charge "reasonable fees" to locate records, officials often define "reasonable" in the most unreasonable terms possible. In Florida, one agency tried to charge the editor of a gay-oriented newspaper $400,000 to gain access to internal emails in which police used derogatory terms.

In one of our own cases, which also attracted national attention, in 2009 the state Department of Natural Resources tried to charge The Times $1,000 for correspondence and other records related to the agency's shoreland zoning revisions. The agency took more than seven months to produce the documents.

In that case emails showed even some agency officials objected to the charge and the timeline to fulfill the request.

New threats

These kinds of tactics - delay and overcharging, legislative exemptions - have been ongoing for decades, but these days officials are picking up the pace. New and ominous threats to open government, and to freedom of speech itself, have surfaced in the past few years.

Since Barack Obama became president, the federal government has tried to silence whistleblowers by prosecuting them under the federal Espionage Act, an unprecedented move.

Indeed, between 1917 and 2008, the Espionage Act was used only three times to prosecute individuals not accused of directly aiding a foreign country. However, with the indictment of Edward Snowden, the Obama administration had used the Espionage Act seven times to prosecute government workers who shared information with the press, according to Jon Greenberg of PolitiFact.

In two of those cases, Greenberg reported, the government's investigations delved into the practices of reporters and news organizations and put reporters in legal jeopardy.

Here in the Badger state, the government's attempt to suppress public information took an ugly turn this year, when government leaders of the Republican Party of Wisconsin mounted a frontal assault on the state's open-records law, hoping to repeal it.

They failed due to a massive public uprising - a ray of sunlight through the dark sky. Still, other wall clouds remain, not least of which is the tendency of state courts to back officials trying to increase secrecy.

To cite just once instance, this past December three so-called conservative members of the state Supreme Court sided with those who want to redact simple accident reports, in a colossal misreading of federal law and congressional intent.

This week, The Lakeland Times will explore in more depth these and other developments in government transparency - or the lack thereof - over the past year, and we will ponder the prospects for open government in the future.

As usual, too, we will offer our annual open-records grades, so the public will know just who is committed to transparency and who is not.

None of this is to say there aren't bright spots, little patches of sky through which the sun peeks through. We underscore our coverage this week not only as an advocacy for imperiled transparency but as a celebration of the transparency that continues to survive, and in some cases even thrive.

Yes, there are judges out there committed to open government, and there are lawmakers and even bureaucrats who are committed, too. We shall honor those officials and government entities who continue to resist the tide against openness.

Perhaps the brightest spot of all this past year was the public uprising against entrenched officials determined to do away with the state's open-records laws. Public opinion prevailed, and it surely has emboldened those who remain committed to openness.

It will strengthen their work, and it bodes well for our mission to preserve and strengthen transparency. We shall honor the public in these pages as well.

Open government is always a fragile thing and must be won over and over again. This past year we witnessed the worst of possibilities - the Republican leadership's bold attempt to kill transparency outright - and we saw the best of outcomes as that leadership wilted under the fury of an outraged public.

It was the worst of times and the best of times. We saw what can happen, and we recognized how powerful we all are to prevent it.

This week, we celebrate the latter and call for vigilance against the former.

Richard Moore may be reached at richardmoore.gov@gmail.com.

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